After Snowden: Privacy, Secrecy, and Security in the Information Age (2015)
EPILOGUE
RONALD GOLDFARB
WHEN I CONCEIVED the idea of a book analyzing the aftermath of the Snowden revelations, I had in mind presenting multiple explorations by various experts of the systemic questions raised by his disclosures. After Snowden does that, and offers recommendations for reforms. All of the chapters respect and acknowledge the very important societal need for careful protection of our nation’s security in a very dangerous time, while they point out systemic problems and offer sensible reform measures to improve them.
Professor Siegel’s chapter urges a fundamental change in the judicial treatment of the state secrets defense. That could be accomplished by the Department of Justice simply changing its position of invariably claiming that national security interests foreclose adjudications in all cases questioning secret government actions. In addition, the courts themselves could reform their current practice of thoughtless deferral to that executive claim, acting within its inherent judicial power to do so in appropriate instances. That is not to say that courts should never affirm the government’s claim for secrecy, but that it should independently decide when to uphold the claim on the merits.
Congress could improve its oversight performance by adopting the recommendations of the prestigious bipartisan 9/11 Commission. Experts with unique CIA and Senate experience agree that the present system is inadequate and overly politicized. Recent disclosures raise serious questions about the effectiveness of congressional oversight in national security matters.
The wisdom of Hodding Carter’s advocacy of a probing press being mindful of its First Amendment mandate is made clear by the Snowden affair. The Guardian’s editor Alan Rusbridger suggests that journalism is a “fire service,” an indispensable agency for the public when events call for a watchdog. The Snowden affair is a classic case of the press contributing to public understanding of important issues while responsibly curating and filtering what should and should not be publicized.
The suggestions of journalism dean Wasserman, and that of law professor Yochai Benkler (also noted here), that the public interest defense be used in American courts in unusual cases when appropriate, makes sense and ought to be implemented.1 Whistleblower laws must be improved to weed out the improper claims but to protect and follow up on correct ones. Specific suggestions are offered by Professors Wasserman and Cole regarding the proper times and situations to use or plug leaks and to encourage or silence the whistles. Examples of recent whistleblowers who were victims not of praise but of scorn, not gratitude but hostility, have been documented in the media, most recently by PBS and by James Risen in his new book Pay Any Price.2 Making whistleblower laws more protective of valid claims is very much in the public’s interest, and should be a part of any reform. There is a logical disconnect between punishing news sources for misappropriation of property and rewarding their accomplices in media for their role in making that misappropriation public.
According to a McClatchy Washington Bureau report, at the end of 2014 “whistleblowers … have served as America’s conscience in the war on terrorism … of government waste, misconduct, and overreach.… Yet the legal system that was set up to protect those employees has repeatedly failed.” Since 9/11, over 8,700 defense and intelligence employees and contractors have filed claims, only to suffer retaliation, the report concluded. Few investigations resulted in reforms.3
Republican Senator Charles Grassley stated, “There is an inherent bias against whistleblowers in the inspector general’s office,” and others in Congress, three Republicans and five Democrats, complained that whistleblower laws were interpreted so narrowly as to potentially preclude meritorious claims of retaliation. The veteran legal director of the Government Accountability Project, Tom Devine, said his group advises whistleblowers “to stay away from established channels to defend against retaliation,” because that “predictably ends up with the whistleblower as the target.”
The recent McClatchy report undermines President Obama’s comment after Snowden’s leak that “there were other avenues available for somebody whose conscience was stirred and [who] needed to question government actions.”
The reporters’ game has changed in major ways. Journalists who historically received leaked information from human sources in private conversations or passed documents can now, through sources like Snowden, have access to vast collections of information. Among other consequences, this means the press’s governing principles on cooperation with leakers and whistleblowers require thoughtful reconsideration.
The new pervasive technology has changed law enforcement, too. Faced with the shocking assault on the United States on 9/11, it was natural for law enforcement officials, instructed by the highest authorities in government, to take appropriate steps to prevent something like that from happening again. Investigations aimed at limiting terrorism now can be undertaken using highly intrusive technology to gather mountains of information for sophisticated search engines to winnow out the terrorist wheat from the chaff. At the same time it has empowered technically sophisticated people to gain access to that same information in vast amounts, including purposes serving no public interest or serving the interests of our mortal enemies. The present volume of records the government gathers, much of it questionable, it seems, can overwhelm the purpose of their collection, building haystacks of data that make needles of crucial information harder to locate. That should change with refined laws governing the collection as well as the classification and declassification of government records, requiring investigative agencies to coordinate the information they gather, and circumscribing the process with reasonable constitutional restraints.
As Thomas Blanton states in his chapter, our classification system needs to be revised in major respects, so that it is solicitous of real needs for secrecy but radically limits those instances to timely, appropriate, and necessary matters. Major bipartisan studies have advocated less classification, more declassification, and more effective sunset and FOIA laws for decades.4 A joint intelligence committee concluded so in 2002.5 Snowden’s disclosures should bring this reform to center stage.
Adapting new and evolving technology to aid the needs of law enforcement while protecting personal privacy requires sophisticated solutions that balance public and private needs. The consideration of how to accomplish both goals is now on the public agenda as a result of Snowden’s disclosures.
Professor Mills’s chapter suggests how we can protect the Homeland and the haystack without unnecessarily exploiting people’s privacy. He recommends ways to establish transparency in domestic surveillance; he calls for effective, independent oversight of surveillance practices and advocates an effective whistleblower system that demonstrates abuses without endangering national security; finally, he proposes protecting citizens with Fourth Amendment procedures that are adapted to the new and more complicated nature of communications in the modern digital world. His admonitions provide a starting point in what surely must be a continuing balancing act as the digital world expands, bringing with it new opportunities and new problems.
All these suggestions balance the nation’s needs for perfection of our security system with protection of the public’s civil liberties. The analyses and proposals in After Snowden are sensitive to the country’s needs for responsible national security measures. Some of us served our government in positions of responsibility, proudly. We do not question the loyalty or commitment of the members of the intelligence security establishment, and it should not question the loyalty of its critics. To disagree with specific policies or practices is not to question the country’s legitimate security interests; to suggest otherwise is to ignore Americans’ constitutional rights.
Former NSA Director General Keith Alexander was correct to call for unity in national security matters between the government, technology, commercial institutions, and the public.6 So was Alexander’s deputy and principal adviser, NSA’s Chief Operating Officer Richard Ledgett, when he agreed that the security hierarchy needs to be more transparent, and acknowledged the need to protect the public’s privacy. Ledgett also stated that Congress “had the opportunity to make themselves aware” of the programs now being criticized.7 Interestingly, Ledgett was open-minded about the possibility of a negotiated settlement between the government and Snowden.8
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Might that be possible? And what should such a settlement include? As a former federal prosecutor, I can imagine a negotiated settlement that would be in the interest of both prosecution and defense. Many critical facts remain to be discovered as this book goes to the printer in early 2015. Yet because of the daily drip of disclosures that continue while Snowden remains a fugitive, a stalemate is in neither side’s interest, and a negotiated resolution between the government and Snowden would be wise.
The prosecution and defense might agree to Snowden pleading guilty to misappropriation of government property, and returning voluntarily to face a speedy public trial. The government wants its material returned, and where there is a real national security reason it ought to be. Elusive as that goal may be, it is a proper concern of the national security community. If he hasn’t retained the material, as he claims, Snowden should tell the government which records he turned over to his select journalists so it can take steps to protect against improper disclosures, short of criminalizing the press. What might the response of Snowden’s press connections be if a settlement between Snowden and the government required the description, if not the return, of the stolen secret files? Barton Gellman has already stated that he would publish no information that jeopardized national security.9 Presuming the good faith of the journalists who have the records Snowden appropriated, the government ought to be able to reclaim those of them that it could demonstrate to a federal (not FISA) court would endanger national security, if the parties do not agree to return the documents voluntarily.
Snowden has asked for a public trial by jury, and the Constitution guarantees that he is entitled to one.10 Presumably it would be in Hawaii, where his offense took place. Snowden told New Yorker correspondent Jane Mayer in October 2014 that he fears a closed court proceeding, but he would return if assured he’d receive an open trial.11 There is no good reason that should not be the case.
Hawaii state courts permit televised trials; its federal trial court does not, though the federal appellate court covering Hawaii does, and some other federal trial courts do.12 If there is a negotiated guilty plea, all that remains to be decided would be the sentencing. That hearing ought to be televised as an important way to educate the public. The government could present its case for sanctions, in camera before the judge alone when confidential issues arise. Snowden could make his plea for the justification of his acts. Justice is best served when it is perceived to be done.
Federal judge Jed S. Rakoff recently wrote that constitutionally guaranteed criminal trials are a mirage because in federal courts 97 percent of them are determined by plea bargains. As a rule they are negotiated secretly by prosecutors “with no judicial oversight,” and Judge Rakoff concludes that this “invites arbitrary results.”13 A public sentencing under the supervision of the presiding judge, in a case as sensitive and notorious as Snowden’s, would add legitimacy to whatever the outcome might be.
Edward Snowden has stated, “… the status quo is no longer tenable … things must change and the public has to have a say in the way its government operates its surveillance apparatus and where the lines are drawn on the boundaries of our rights.”14 While opinion polls oscillate, there is growing public agreement with Snowden’s remark.
The New York Times editorialized on January 1, 2014, that Snowden “has done his country a great service,” and deserves “some form of clemency.”15 His ultimate sentence, after the government presents its case, and Snowden his mitigations, finally would put into a correct context the demonstrated public costs and the verified values of Snowden’s actions. When those facts are finally on the public record, a proper verdict and proportionate sentence could be reached. The salutary reforms of our country’s policies, bound to be generated After Snowden, will place his daring acts in a full context, whatever the public may think about his methods. Snowden has said he is prepared to face fairly adjudged sanctions.16 His sentence could include ways for him to contribute to his country’s interests as part of that adjudication. Conviction alone would reconfirm the vital precedent against theft. A wise and balanced sentence would demonstrate the value of reconciliation as a central element of justice.
For any court to calculate the excruciating balance between appropriate and competing interests in national security and personal privacy is as difficult as it is important. The choice is not either/or. The best national policy requires protection of both important interests. The wisest balance includes the endorsement of the public (through its public and private institutions) to a maximum degree feasible. One hopes that the lessons learned in the aftermath of the Snowden phenomenon will lead this country to a better place, safer and at the same time more attentive to constitutional protections. That was the intent of Snowden’s actions, and it ought to be the result.