Edward Snowden: Fugitive without a country

As I write, Edward Snowden is on the run. Having leaked the existence of the vast governmental data-mining operation known as PRISM, he is wanted as a felon under the provisions of the 1917 Espionage Act. This statute, whose purpose was to prosecute persons giving secret information to foreign powers, was invoked a half dozen times in its first 90 years. Since 2009, it has been the Obama administration's weapon of choice against whistleblowers.

Snowden is surely no angel; whistleblowers seldom are. He was a CIA operative for a while, doing no one knows what, and then an employee of Booz Allen Hamilton, a private firm working for the National Security Agency, where his job was to spy on you and me.

As he tells us, he became disenchanted when he realized that his work was part of a vast and unprecedented dragnet capable of creating an intimate profile of every American who used electronic communication of any sort. This system's alleged purpose was to protect the "homeland" from terrorist attack. In practice, however, it created what the Washington Post journalist Barton Gellman calls a "one-way mirror," in which the activity of private citizens is exposed to perpetual surveillance, while that of the public servants presumably responsible to them is hidden from view.

Man behind the telescreen

Remember those telescreens from George Orwell's 1984 that followed you everywhere around the house? Kind of the same idea, except far more thorough and sophisticated, and totally secret. With PRISM, you don't see the screen or mirror; you don't know it's there. But it sees and knows you. The eye isn't human but electronic; the data trap is algorithmic. When it blinks, though, the bureaucracy jumps to attention— or is supposed to.

Snowden is the guy who came out from behind the mirror, because he decided that the rest of us needed to know it was there.

President Obama says he welcomes the debate that Snowden's revelations have triggered. He just wants to put the man who made it possible in jail for a very long time.

Let's look at the two halves of that equation. PRISM is an extension and a vast expansion of a program proposed and rejected during the George W. Bush administration. Its purported legal basis is the Justice Department's interpretation of Section 215 of the Patriot Act, which— as its author, former Republican Senator James Sensenbrenner, now says— has been extended in ways that far exceed its intent.

Who lied to Congress?

The Foreign Intelligence Review Court agrees that the Obama administration has abused its mandate— but that ruling was issued in secret because the "court" itself is secret. The administration says it scaled back its collection in compliance with the ruling, but when National Security Agency Director James Clapper was asked before Congress whether the NSA was doing exactly what it was doing, his answer was, "No."

Just wondering— isn't lying to Congress a felony? If Edward Snowden is being pursued around the globe for telling the truth, why isn't James Clapper being prosecuted for lying under oath? And why hasn't he been relieved of his duties, as Snowden has been of his passport? Didn't the Internal Revenue chief have to resign recently when his agency became overly inquisitive about certain taxpayers?

The Obama administration asserts that Snowden has done grave harm to national security by revealing the existence of PRISM. It hasn't explained how, though. No agent's cover has been blown. No sting operation has been disrupted, unless you assume that terrorists never expect to be tracked and always speak freely on the phone. All that has been disclosed is that the government is actually using a program it has long been known to be theoretically capable of implementing.

East Germany's example

That's a big deal— a very big deal— because it exposes the fact that our government now treats Americans as fair game for spying. We are no longer citizens presumed to be conducting our lawful, private business unless our behavior indicates otherwise, but automatic suspects. This presumption alters the relationship between governors and the governed in an absolutely fundamental way. Government no longer exists by the consent of the governed, but the other way around.

It puts one in mind of Bertolt Brecht's poetic retort to the apparatchik who complained that East German workers had to earn back the trust of the government after their 1953 uprising by asking whether it would not be easier for the government "To dissolve the people / And elect another?"

Stasi, the East Germans' spook agency, would eventually convert virtually the entire population of the country into spies on each other—an unnecessary effort nowadays, when citizens report themselves to the government with every electronic communication they make.

Traitor to his company

As for Snowden, I wonder precisely what is the basis of his prosecution under an espionage act is. He worked for a private company when he accessed his material, not the government, and he hasn't conveyed it to any foreign power but to the press. Of course, he'd promised not to make this material public, but that would be a complaint for the company to pursue; technically, Snowden blew his whistle against Booz Allen Hamilton. Snowden himself has said he went to work for the company precisely for this reason.

When Secretary of State John Kerry was asked how Snowden could be described as a traitor under these circumstances, he replied that he would not parse words, but that Snowden had obviously been a "traitor" to his oath to Booz Allen Hamilton. I'm sure Kerry is aware that the term "traitor" is unknown to civil law, and that individuals do not swear oaths to private corporations. On such an interpretation, any whistleblower could be prosecuted for treason.

Snowden has not betrayed his country; he has served it. Yet now he is fleeing for his life. It's a singularly ugly spectacle, as the most world's powerful government warns off great powers from assisting him in any way and threatens smaller ones against offering him asylum. Snowden may soon be left with no choice but to sell what he has to the highest bidder, or to the patron best able to offer him protection. That would be the worst-case scenario for him, and for Americans.

A modest suggestion

There is an alternative. Snowden could be induced to return home under a full grant of immunity and invited to tell what he knows in open Congressional testimony. Then we might all have a better idea of which oaths— oaths of office— have really been broken. His testimony would launch that conversation about privacy and security that President Obama says he is so anxious for us to conduct.

I'm waiting for someone in Congress to make that suggestion. It won't be Senators Dianne Feinstein or Charles Schumer, or House Minority Leader Nancy Pelosi, all of whom have jumped aboard the administration's juggernaut. But how about Senators Mark Udall and Ron Wyden, who tried desperately to signal their concerns about the National Security Agency two years ago? Or the libertarian Rand Paul? Or Vermont's Bernie Sanders? There isn't much career risk for him in sticking his neck out.

Who knows? Maybe giving Edward Snowden his freedom would give the rest of us back some of our own. Or is that what the administration fears the most?♦


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