By John Cassidy
The New Yorker
Now that Congress has passed, and President Obama has signed, the U.S.A. Freedom Act, which places some limits on the domestic-surveillance powers of the National Security Agency, there’s still unfinished business to deal with.
The new legislation, while it is commendable as far as it goes, contains some obvious shortcomings. Barring the N.S.A. from collecting and holding the phone records of hundreds of millions of Americans was a necessary step, but it won’t make much difference if the result is that the phone companies hold on to the data and secret courts enable the N.S.A. to access it virtually at will. The legislation leaves on the books a law from 1986 that allows the government to read any e-mail that is more than six months old, and it doesn’t change Section 702 of the 2008 FISA Amendments Act, which the N.S.A. has used to justify collecting not just metadata, such as phone records, but the actual contents of communications, such as e-mails and online chats.
Another matter still at hand is the fate of Edward Snowden, the former N.S.A. contractor who has been languishing in Vladimir Putin’s Russia for almost two years. In a statement that President Obama issued shortly before signing the new law, he said, “For the past eighteen months, I have called for reforms that better safeguard the privacy and civil liberties of the American people while ensuring our national security officials retain tools important to keeping Americans safe … enactment of this legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs.” Nowhere did the President or the new law’s sponsors on Capitol Hill state the blindingly obvious: that if it hadn’t been for Snowden’s leaks, the intelligence agencies’ excesses would never have come to light, the U.S.A. Freedom Act wouldn’t exist, and the N.S.A. would still be merrily sweeping up phone records and analyzing them as it saw fit. (My colleague Mattathias Schwartz argued last week that Snowden shouldn’t have been necessary.)
Instead of thanking Snowden for his public service and inviting him to come home, the U.S. government is still seeking to arrest him and try him on charges that carry long prison sentences. “The fact is that Mr. Snowden committed very serious crimes,” the White House spokesman Josh Earnest said on Monday. “The U.S. government and the Department of Justice believe that he should face them.”
In a criminal complaint that it filed on June 14, 2013, the Justice Department accused Snowden of stealing government property, communicating national-defense information without authorization, and revealing classified information. The last two charges were filed under the 1917 Espionage Act, which seemed to suggest that the U.S. government regards Snowden as a spy. That is absurd. Despite suggestions in some quarters, back in 2013, that Snowden might be passing along some of America’s secrets to the intelligence agencies of China or Russia, there is no evidence that this happened.
Rather than transmitting information to foreign powers, Snowden handed over his electronic stash of documents to reporters from the Guardian and the Washington Post, with the stipulation that they treat its contents sensitively and carefully. Although the leak led to some sensational stories—Michael Morell, a top C.I.A. official, called it “the most serious compromise of classified information in the history of the U.S. intelligence community”—the journalists largely adhered to Snowden’s stipulation.
The news stories brought to light many details about domestic surveillance, such as the bulk collection of phone records and the PRISM program, which enabled the N.S.A. to retrieve users’ e-mails and search histories from Internet companies such as Google and Facebook. Another story revealed that the N.S.A.’s own internal auditor had concluded that the agency had breached its own privacy rules or overstepped its legal authority thousands of times a year since 2008. But despite some embarrassing details about overseas operations (such as the fact that the United States had tapped the phone calls of world leaders, including Germany’s Angela Merkel), the stories based on the Snowden leaks didn’t reveal much about specific U.S. intelligence operations around the world. Nor did they compromise individual intelligence agents.
As Snowden intended, the primary impact of the leaks was on political debate inside the United States. Based partly on the information that Snowden released, a federal judge, Richard J. Leon, ruled in December, 2013, that the N.S.A. had violated the Constitution, calling the bulk-data-collection program “almost Orwellian.” That same month, a panel of experts appointed by Obama issued a report calling for some restrictions on the powers of the FISA court and for an end to the N.S.A.’s bulk-data-collection program, which, the panel said, “creates potential risks to public trust, personal privacy, and civil liberty.” Led by the Democratic Senator Patrick Leahy, of Vermont, and the G.O.P. Representative Jim Sensenbrenner, of Wisconsin, a bipartisan effort emerged to rein in the N.S.A., which Sensenbrenner, one of the original authors of Patriot Act, accused of misusing and overstepping the powers that Congress had granted to it. The newly passed legislation is an amended version of the original bill that Leahy and Sensenbrenner put forward in the fall of 2013.
To repeat, none of this would have happened without Snowden’s intervention. Doubtless, the intelligence agencies are pressing the White House to stick to its hard line about prosecuting him, on the grounds that dropping the charges, or making some sort of plea bargain, would encourage other leakers. But that is a self-serving argument, and it doesn’t stand up to inspection. In a free society, we want whistle-blowers who have persuasive evidence that great wrongs are being carried out to come forward and tell us about them. The President has argued in the past that Snowden could have taken his concerns to his seniors, and that he would have been protected by an executive order affording protections to whistle-blowers in the intelligence agencies. The notion is risible. As the Times editorial board pointed out last year, the executive order that Obama was referring to didn’t even apply to government contractors like Snowden.
Americans understand that they live in a world that contains people and organizations intent on doing harm to the United States, and they are willing to grant the federal government some intrusive powers in order to protect the country and its citizenry. But they also want reassurance that the authorities aren’t monitoring the every move and communication of ordinary people who have nothing to do with terrorism or any other form of wrongdoing. In the words of the high-level panel of experts appointed by Obama, “Free nations must protect themselves, and nations that protect themselves must remain free.”
After 9/11, for a variety of reasons, some of them eminently understandable, the trade-off between security and liberty tipped too far in the direction of intrusion and authoritarianism. Historians will record that Snowden’s leaks helped, at least somewhat, to right the balance. At great risk to himself, he stood up to the immensely powerful system for which he worked, and cried foul. Rather than seeking to incarcerate Snowden for decades, which was the fate that met Chelsea Manning, the WikiLeaks whistle-blower, the U.S. government ought to be seeking some sort of deal with his lawyers that would allow him to return home and carry on with his life.