Show sidebar

Is Snowden Obliged to Accept Punishment?

This is Secretary of State John Kerry’s answer, given May 28 on CBS This Morning:

“He should man up, come back to the United States. If he has a complaint about what’s wrong with American surveillance, come back here and stand in our system of justice and make his case. But instead, he’s just sitting there taking pot shots at his country, violating his oath that he took when he took on the job he took, and betraying, I think, the fundamental agreement that he entered into when he became an employee.”

Lest anyone miss the point, Kerry explained that same day on MSNBC that Snowden is a “coward” and a “traitor.”

Elements of the same argument, absent the macho bluster, have been advanced by a number of serious commentators, Michael Kinsley and Benjamin Wittes among them. It is a serious argument. Let us, therefore, consider it seriously.

Pulling together disparate strands and stating the argument in its strongest form, it might be formulated as follows. Snowden effectively seeks to place himself in the tradition of civil disobedience. That tradition has it that an unjust law may, and perhaps must, be disobeyed. Snowden necessarily contends that the laws protecting the secrecy of the NSA programs that he revealed were unjust. The people, he believes, had a right to know about them. But the tradition of civil disobedience requires that the disobedient accept the penalty that the law prescribes. This is necessary to ensure sincerity and to reaffirm one’s respect for and commitment to the rule of law generally, from which Snowden has surely benefited and the validity of which he does not contest. Acceptance of punishment is part of an implicit social contract, and is particularly obligatory where the challenged activities were legal, as were the NSA programs at issue; where the disobedient agreed not to disclose them, as Snowden did; and where public disclosure could cost lives, as his could. If every national security official felt free to leak any classified information about any program deemed for some reason objectionable, chaos would ensue. Snowden ought therefore to return to the United States to stand trial and face whatever penalty the law imposes.

The argument has a specious attractiveness; however, its premises are arbitrary, its logic shaky, and its implications pernicious.

Consider first the “tradition” of civil disobedience, which is vastly more complex than the argument recognizes. It is true that some disobedients, such as Henry David Thoreau, Mahatma Gandhi, Martin Luther King, and Rosa Parks, did not seek to evade punishment. It is also true, however, that they could not possibly have done so, for their acts of disobedience could not have been concealed. Not paying taxes, sitting in at segregated facilities, and leading illegal marches or demonstrations are not activities that afford the possibility of concealment or evasion of punishment. Other disobedients’ activities have permitted concealment, however, and some were in fact carried out covertly. The “underground railroad” by which people aided runaway slaves is one prominent example. The Fugitive Slave Act of 1850 made it unlawful to do so, but no one seriously claimed that the thousands of individuals who evaded punishment for its violation ought to have come forward and accepted prison sentences for its violation. The Boston Tea Party is another. Are the disguised “Mohawk Warriors” who illegally dumped 342 chests of tea into Boston’s harbor to be condemned because they did not give themselves up and stand trial? Even if the tradition of civil disobedience were arbitrarily conceptualized narrowly so as to exclude covert, disobedient abolitionists and the secretive Sons of Liberty, the question remains: so what? If what Snowden has done was in some sense “just,” why should it matter whether it falls within one manufactured tradition or another, or some factitious social contract that supposedly flows from that tradition?

The argument further supposes, again arbitrarily, that there exist, in reality, two separate legal regimes. The first posited regime prohibits: it forbids espionage or the unauthorized disclosure of classified information. The second regime penalizes: it enforces that prohibition by prescribing a punishment for its violation. It is only the prohibitory regime, the argument contends, that Snowden challenges (indeed, challenges only as applied to these particular circumstances), and the propriety of violating the prohibitory regime says nothing about violating the punishment regime. But the assumption of two regimes is capricious. Why is punishment not linked inextricably to prohibition? How could one exist without the other? If it is unjust to prohibit a given disclosure, how can it become just to punish violators of that prohibition?

The argument is, at bottom, an argument against any leak by any public official in any circumstances, however justified. Even if an official is possessed of classified information describing activities that clearly violate the Constitution and laws of the United States, even if those activities involve serious harm to many innocent people, even if those activities are grossly inconsistent with fundamental American values, and even if the disclosure of that information causes no harm to the security of the United States or the safety of any individual, the official still may not clandestinely disclose the information, but rather is obliged to take public responsibility for its disclosure and accept punishment. That makes no sense. If this principle were accepted, the press would cease to exist as an independent check on secretly-exercised, autocratic power. All leaks would be ruled out, from Deep Throat’s to Daniel Ellsberg’s. This would be the ultimate consequence of Michael Kinsley’s position that the decision whether to release government secrets “must ultimately be made by the government.” As Jack Goldsmith has pointed out, that cannot be right.

Disobedients have not, moreover, uniformly accepted punishment simply to affirm their good faith or continuing commitment to the rule of law. Some have done so and even actively sought out punishment because public arrest, trial, and imprisonment advanced their causes. Publicizing brutality, unfairness, or other injustice has long been a political tactic designed to generate support. King’s Letter from a Birmingham Jail might not be a classic in the literature of civil disobedience had it been fashioned a Letter from a Motel Six. If the argument is that a disobedient ought voluntarily to endure a proper amount of suffering to guard against frivolous violations, it would require an impoverished imagination to believe that the probability of life-long exile in a state of constant physical danger is insufficient to focus the mind. In any event, how Snowden’s action could be taken as a broadside assault on the rule of law is baffling. The exceptional circumstances in which he acted and the dilemma he confronted hardly imply an undifferentiated, indiscriminate rejection of the very idea of law. Snowden swore to “support and defend the Constitution of the United States, against all enemies, foreign and domestic”; indeed, unless that oath and the Constitution are seen as collapsing in the face of some conflicting statutory or contractual provision, Snowden might well be characterized, given the doubts surrounding the programs’ constitutionality, as respecting the law rather than disrespecting it, as an obedient to the rule of law rather than a disobedient.

This raises, finally, the relevance of the lawfulness or unlawfulness of the NSA programs themselves. Should not Snowden have resolved doubts about their lawfulness by deferring to the ostensible approval of Congress, the Executive, and the courts—none of which, arguably, saw in those programs the flaws that Snowden did? Why substitute his judgment for that of the elected representatives of the American people? But why, if his objection to the law is a moral objection, should legality matter at all? Violators of the Fugitive Slave Act of 1850, after all, also violated a law that had been enacted by Congress and signed by the President—and, unlike the NSA programs, expressly upheld by the United States Supreme Court. (In the same year that it did so, 1859, the Court in Dred Scott struck down the Missouri Compromise as violative of the due process rights of slave owners.) Jim Crow laws of more recent times also received the imprimatur of all three branches of state and local governments. Still, would-be disobedients ought surely be given pause at the prospect of disobeying laws that have come into force through processes and office-holders that the people approved. Of course, in the Snowden case this pre-supposes the operation of a democratically accountable national security system in which the deck is not stacked (which has become, in my view, a heroic if not dubious assumption).

The profundity of the legality question notwithstanding, the important point is that the lawfulness or unlawfulness of NSA’s programs does not go to the issue whether Snowden is obliged to accept punishment. It goes more to the question whether he was justified in violating the law to begin with. So, too, with the question whether Snowden ought to have placed lives at risk, which he at least potentially has done. From Sophocles’ Antigone to Thoreau’s On Civil Disobedience, from Plato’s Crito to King’s Letter, no one has yet unveiled a bright-line test or even a workable standard that reveals when civil disobedience is permissible, let alone obligatory. While the never/always answers proffered at the margins can safely be ruled out, a gaping, muddled middle nonetheless remains. Answers within it are bound up in multiple, competing theories concerning the nature of law, morality, and the relationship between the two. The most sensible approach counsels—frustratingly—an ad hoc balancing of goods against bads that inevitably are incommensurable. “There are historic situations,” Reinhold Niebuhr wrote, “in which refusal to defend the inheritance of a civilization, however imperfect, against tyranny and aggression may result in consequences even worse than war.” Defending the inheritance of civilization sometimes entails sacrificing lives and even law. Those who do so invariably risk being denounced by their governments as traitors. But when such defense is necessary—and Edward Snowden may well have taken a courageous step to do just that—it can hardly be dismissed as a failure to “man up.” Rather than seeking to belittle an individual who conscientiously confronts this dilemma, a true statesmen would have the insight to see the situation for what it is: a Niebuhrian tragedy, in which a reasonable person proceeding in good faith, fully attentive to all commitments, could be forced to choose between being a traitor to the government or a patriot to the people.

Filed Under: , , ,


About the Author

is Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University. He has been Legal Counsel to the Senate Foreign Relations Committee (1977-1980) and has served as a consultant to various congressional committees, the U.S. State Department, and the International Atomic Energy Agency.