“Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an executive coup against the U.S. Constitution.”By David Kravets
Daniel Ellsberg had it right from the start.
Just a few days after the first Edward Snowden bombshell dropped in June — showing that the NSA was hoovering all phone metadata in the U.S. — the famed Pentagon Papers leaker declared that the revelation was the most important leak in American history.
“Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an executive coup against the U.S. Constitution,” Ellsberg said at the time.
That “possibility” Ellsberg foresaw is now a reality. U.S. District Judge Richard Leon in the District of Columbia declared Monday that America’s founding fathers would be “aghast” at the NSA’s bulk telephone metadata spying, that it infringes the Fourth Amendment, and the legal precedent a U.S. secret court has been citing to justify its existence is out of date.
Yet Snowden, an American citizen, is in Moscow, living in exile and facing espionage charges if he returns to the United States. Members of Congress, like Sen. Dianne Feinstein (D-California), Sen. Saxby Chambliss (R-Georgia), House Speaker John Boehner (R-Ohio), and countless others have said the former NSA contractor has essentially committed treason for downloading thousands of classified documents and dispensing them to journalists. The justice department felt the need to say he wouldn’t face the death penalty if he returned to face charges.
“He’s a traitor,” Boehner said in the aftermath of Snowden’s first of many revelations of illicit U.S. government spying on Americans’ electronic communications. “The president outlined last week that these were important national security programs to help keep Americans safe and give us tools to fight the terrorist threat that we face.”
Snowden may have broken the law by stealing government secrets and giving them to the media. But as Judge Leon’s ruling forcefully argues, it’s the U.S. government that betrayed the highest law of the land by cataloging all U.S. calling records beginning in 2006 — without probable-cause warrants in the name of national security and in violation of the Constitution.
“The great irony is the government is trying to prosecute a whistleblower for bringing to light illegal government conduct,” Anthony Romero, the American Civil Liberties Union executive director, said in a telephone interview.
President Barack Obama, however, has said it’s time for Snowden to face the music. “If in fact he believes that what he did was right, then, like every American citizen, he can come here, appear before the court with a lawyer and make his case,” Obama said in August. But that’s disingenuous of the president: As a former Constitutional law professor, Obama knows full well that revealing illegal behavior is not a legal defense to espionage charges.
For his part, Snowden said his leaks were justified. Immediately after Judge Leon’s decision, which the judge stayed pending appeal, Snowden said:
“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” he said. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights.”
Snowden’s disclosures also had impact yesterday when a five-member panel, known as the Review Group on Intelligence and Communications Technologies appointed by Obama, urged the government not to retain the phone database that has some 1 trillion records and instead leave it in the hands of the telephone companies or a third party, leaving it only accessible by the government upon a court order.
“In our view, the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy, and civil liberty,” (.pdf) the group said in one of dozens of recommendations it made in the wake of Snowden’s leaks.
Greg Nojeim, a director of the Center for Democracy & Technology, said the report “adds to the growing momentum for meaningful reform of intelligence and surveillance practices.”
It’s clearer than ever that Snowden is a whistleblower, not a traitor.