Edward Snowden and the Meaning of the Espionage Act Post 9-11
June 25, 2013
R. Tamara de Silva
The point of demarcation between speech, whistleblowing and espionage has in some instances the aspects of a razor's edge. Edward Snowden's criminal complaint under the Espionage Act was unsealed last Friday. The Espionage Act has only been used three times since it became law during WWI. In just five years, President Obama has used it eight additional times to prosecute whistleblowers under an elastic and theoretically boundless definition of what constitutes national security. Since 2009, the Espionage Act has been used against whistleblowers more than in all other Presidential administrations in the past 90 years combined. Whether one thinks Edward Snowden is a traitor for exposing a clandestine wiretap dragnet of Americans and foreigners, or a patriot for exposing a truth that may not otherwise ever become known to his countrymen, is largely beside the point. Snowden's case reveals a lot more as we approach another Independence Day about how one day has changed our system of government. The arguments advanced to suggest that the NSA's powers are checked by two other branches of government, are largely specious. What Snowden's case reveals is the extent to which Americans gave the Executive Branch a blank check after September 11, 2001 and what that actually means for every American hereafter.
In the Inferno, when Dante begins his entrance into the gates of hell, guided by no one less than the great Virgil, he comes across a bleak warning, lasciate ogne speranza, voi ch'intrate or, "abandon all hope ye who enter here." After 9-11, contrapasso to the United States Constitution, as if capitulating to the admonishment that greeted Dante, Americans abandoned a measure of hope in America's core values and founding principles. A bi-partisan Congress signed the Patriot Act-in the absence of any public outcry, and almost no media attention or intellectual grasp of what it would actually mean.
Civil libertarians are criticized as if denouncing the Patriot Act or any infringement upon the Constitution is a naive demand for ideological purity. However, this criticism demonstrates a stunning unfamiliarity with the legal, historical and normative meaning of what constitutes America. It is only after all a common desire to live under a system of laws with checks and balances that drew every single wave of immigrants to our shores-especially, the very first ones. They knew what it was like to live with tyranny, and the unchecked power of a few men. They were traitors to the Crown, fanatics and ideologues-in sum they were the quintessential Americans. It was a desire to live under the rule of law as opposed to the rule of men or a monarch or autocrat that is profoundly American.
After September 11, 2001, for the first time, America, the place that had seemed the birthplace of sedition, would begin to transform itself away from its grand republican historical experiment towards more tried historical clichés we have seen made manifest in other places. Even as the United States Supreme Court reminded President George W. Bush's administration in Hamdi v Rumsfeld, that even in national security matters, we remain heirs to the Magna Carta, " heirs to a tradition given voice over 800 years ago," and that invoking national security did not give the Executive a blank check-the bulwarks against any real check on the Executive Branch in matters stated to be of national security,( also as so happens almost exclusively also defined by the Executive), were gone. The Magna Carta is important because the barons that would bind their king, a thing never before done insisted that their king's power and that of any subsequent executive would be confined to the rule of the law. It is upon this one idea above all others upon which America was founded -that we are a country ruled by law as opposed to the historical alternative we had determined to get away from- rule of men, unanswerable to law and capable of wielding power -unchecked and therefore in application, absolute. We have striven to come a long way backwards in time.
What Edward Snowden revealed is a secret monitoring of all cell-phone calls and Internet usage of American citizens. This is permissible under Section 215 of the Patriot Act, which justifies the NSA's roving dragnet of wiretaps on all Americans and even before 2008, warrantless wiretaps from cell phone and Internet service providers. The NSA monitors which numbers call which other numbers-information termed metadata. What is unclear is whether there are any limits on the use of the metadata gathered in the roving wiretaps. For example, even though we are told the information gathered is merely the numbers dialed between phones, now at least three former NSA whistle-blowers, including Thomas Drake and William Binney have pointed out that it is possible to access the content of the communications without a warrant depending upon the hunch of an analyst with sufficient security clearance. No one outside the NSA knows how long this information is stored or whether it can be used across agencies. For instance, can your statements in a phone call made to a relative be used against you years from now in an IRS audit or a criminal investigation? Does your use of a phone constitute an endless autobiographical deposition where you are committing yourself to statements that any agency of the government can subsequently use against you, perhaps merely to prove you were lying? Could these ever be played to a jury to show bias or contradiction? Can this information be used in civil litigation? Can it be hacked or sold? How do you know? And to the extent this is not a rhetorical question- where are the boundaries, if any, to an individual's zone of privacy?
Lower High Ground
"He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you." Friedrich Nietzsche
More importantly, what happened to national higher ground, based on principles of freedom and human dignity we believe worthy of exporting to the rest of the world? After the Patriot Act and 9-11, we decided that the same practices we condemned the Japanese for engaging in as torture in WWII, such as waterboarding were not even all that unpleasant. We went so far as to write legal memoranda justifying various methods of torture including, as then President George W. Bush's Justice Department lawyer John Yoo reasoned, the crushing of a child's testicles in front of his father-all became legally justified. It is not surprising that the modern day Torquemada, John Yoo along with Dick Cheney call for the immediate imprisonment of Edward Snowden considering that Yoo wrote legal memoranda justifying various torture methods that could have just as easily been the playbooks used by Saddam Hussein's finest interrogation experts in the infamous White Lion-what is more surprising is his professorship at University of Berkeley's School of Law. It was not always so.
Conservatives were once opposed to torture on principal. President Ronald Reagan aggressively prosecuted torture, getting the United States to sign the United Nations Convention on Torture in 1984-a measure he championed stating,
"The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.
The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution."
What is significant in the treaty banning torture that President Reagan signed is its broad definition of torture and its categorical repudiation of it:
Article 1's definition as ""any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession"
"No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."
President Reagan was right albeit diametrically opposed with the near unanimity of current conservative thought on the matter. After our country stooped to torture practices we once criticized in rogue nations and despotic regimes, both a 6,000 page Senate Intelligence Report and 600 page non-partisan report of the Constitution Project yielded the conclusion that while the United States of America had engaged in torture, post 9-11, these torture practices never yielded any information that could not have been obtained without torture.[]
What Snowden's case and his flight to escape a fate similar to Bradley Mannings means, is that at it core, until the Patriot Act, the United States was ruled from inception by laws, with checks and balances. Post 9-11 we have given the Executive Branch and the past two administrations free rein in regards to justifying our country's use of torture, indefinite detention, warrantless wiretaps, the usurpation of judicial due process by the invention of something Attorney General Eric Holder calls, "Executive due process," the use of drones to kill Americans and noncombatants everywhere, at the sole discretion of the President-in short the unquestioned elimination of the Fourth Amendment and much of due process of law as long as they said it had something to do with national security or fighting terrorists.
Many liberals and Bush era civil libertarians are suddenly at ease with the decade long holding of uncharged, cleared prisoners at Guantanamo Bay, the enaction of a permanent suspension of habeas corpus through indefinite detention and the invention of whatever "executive due process" is because they like President Obama and just did not like George W. Bush. As if somehow every President that gets elected will also be someone they equally like and therefore trust, presumably making parts of the Bill of Rights superfluous for Americans from now on. This is the same non-thinking thinking that dim witted masses have historically always displayed whether buying tulips, attending rallies for Mussolini, unquestioningly goose-stepping to their political party, or buying at the top of every financial bubble - a singular confirmation bias enjoyed by crowds everywhere at every age that only looks as incredulously stupid as it is in historical hindsight.
After the Patriot Act, America gave the Executive Branch a blank check. In doing so, we have set the stage for every prospective President to rule in a manner not only never intended by the founding values of this country-but in accord with less a country of laws, than a country of men. In this context the collection and unknown use of metadata and surveillance of Internet activity should not be all that surprising.
The surreal irony of the United States seeking the return of a dissident from Russia or China aside-Edward Snowden's case, like that of several whistleblowers before him, speaks to how a great free nation now values the transparency of its government but perhaps as equally also, dissent. Were Snowden to return to the United States, he would meet the fate of Bradley Manning. Fear of being treated like Manning may make his entreaties for asylum from cruel and unusual punishment far more credible not only with Hong Kong but Ecuador and Iceland.
The Espionage Act
After entering WWI, Congress enacted the Espionage Act of 1917. Parts of that statute took aim at expression, dissent and freedom of the Press under the First Amendment stating in pertinent part that it would constitute to the crime of espionage to,
(a) willfully to 'make or convey false reports or false statements with intent to inter- fere' with the military success of the United States or 'to promote the success of its enemies'; (b) willfully to 'cause or attempt to cause insubordination, disloyalty, mu- tiny, or refusal of duty, in the military or naval forces of the United States'; or (c) will- fully to 'obstruct the recruiting or enlistment service of the United States.' []
President Woodrow Wilson's proposed version of the statute would have further suppressed press expression by defining espionage even more vaguely as, "to publish any infor- mation that the President, in his judgment, declared to be 'of such character that it is or might be useful to the enemy.'"[] Fortunately, due to the objections of many lawmakers, including Senator Henry Cabot Lodge who described the language as granting government officials the ability to censor "legitimate public criticism," President Wilson's press censorship provisions did not get included in the Espionage Act.
What Congress realized in refusing to pass President's Wilson's language that would have made freedom of the Press dependent upon the will of the White House, was exactly what Supreme Court Justice Potter Stewart understood as the purpose of the free press-"The primary purpose of the constitutional guarantee of a free press was . . . to create a fourth institution outside the Government as an additional check on the three official branches."[] A free people are presumed capable of making better decisions when having more facts rather than merely being told what to think by assimilating a controlled message. In other words, we are country designed to have get our information from the reporters and newspapers, not a monolithic pr firm or political campaign.
The purpose of a free Press is to provide an outside check and balance on the government so that information does not get released to the American people merely through a state sanctioned media. Americans are only able to vote based upon information they gather and they cannot be wholly reliant on an American equivalent of the state run Pravda. In a free country, in accordance with America's founding values, the exchange of information and free discourse must be protected- a free Press, and even more an open Internet and social media, become invaluable guardians of freedom.
Since 2009, we are using the Espionage Act to seemingly selectively prosecute what classified information can be leaked-depending upon who is doing the leaking. For example, last August 2012, the Justice Department indicted a former State Department contractor Stephen Jin-Woo Kim for leaking classified information about North Korea's nuclear intentions to Fox News correspondent, James Rosen. The Justice Department had subpoenaed Associated Press emails and made it clear that it would prosecute the press for reporting classified information.
Kim's criminal defense lawyer, Abbe Lowell pointed out to the District Court that the White House had leaked much more sensitive but equally classified information to journalist Bob Woodward to write his book, the Obama Wars. No one in the Executive Branch would be prosecuted by the Executive Branch's Justice Department for leaking classified information-fitting the letter of criminality dictated within the Espionage Act. Of course not. Why Mr. Lowell argued, was Kim being prosecuted for doing less? Unfortunately, selective prosecution is not a defense but Mr. Lowell's point is unimpeachable.
The Espionage Act (18 U.S.C. §793 (d)-(f)) is a statutory bar against the willful dissemination of classified national security information-which is defined in the statute as,
any document, writing, code book,
signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note relating to the
national defense, or information relating to the national defense
which information the possessor has reason to believe could be used
to the injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits or
causes to be communicated, delivered, or transmitted or attempts to
communicate, deliver, transmit or cause to be communicated,
delivered or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it
on demand to the officer or employee of the United States entitled
to receive it; or
What is significant about §793 (d) of the Espionage Act is that however broadly information is defined as classified (keep in mind more and more information is increasingly, even by government accounts, over-classified at the cost of billions of dollars per year-often to keep information getting from one government agency to another), whether it is legally obtained or not, it becomes a crime to disclose the information to "any person not entitled to receive it."[] By many accounts, a great deal of what the government classifies as top-secret, need not be classified as such.[]
This broad provision of the Espionage Act makes it possible for the government to prosecute Wikileaks, Glenn Greenwald, who interviewed Edward Snowden, and newspapers like the New York Times and Washington Post, which have often reported on information given by NSA whistleblowers because they report the information to an audience that is "not entitled to receive it." Technically, newspapers violate the letter of this law in telling the stories of NSA whistleblowers, but would you really want to see the Press silenced? Would you be better off, not knowing that torture was practiced, that there were secret prisons called black sites, the real status of foreign wars, Internet surveillance or warrantless roving wiretapping? Would it be better not to reveal faulty intelligence and engage in another Iraq War...to many who deny that the Iraq War was a failure, the answer is simpler and such question unnecessary.
The current administration's liberal employment of the Espionage Act contradicts the spirit of another important law, the federal Whistleblower Protection Act of 1989. This Act protects federal whistleblowers who work for the government and report agency misconduct by prohibiting a federal agency from taking retaliatory action against the whistleblower. As a candidate-elect, President Obama had admired the Whistleblower Protection Act stating on his transition website:
Protect Whistleblowers: Often the best source of information about waste, fraud and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayers dollars, should be encouraged rather than stifled...We need to empower federal employees as watchdogs of wrongdoing and partners in performance.[]
He would soon alter his stance on whistleblowers and leakers. His first prosecution was that of senior NSA official, Air Force officer and whistleblower Thomas Drake, who was charged with violation of the Espionage Act in 2010 for leaking information about the NSA's illegal warrantless surveillance of Americans. "I was faced with a crisis of conscience...What do I do -- remain silent, and complicit, or go to the press?"[]
Drake's prosecution was less than successful and its exposure of the illegal practices likely resulted in the NSA subsequently going to Foreign Intelligence Surveillance Court or FISA court to get warrants-something that would not have occurred otherwise.
FISA-No Check or Balance
FISA courts are not a substitute for actual checks and balances because a FISA court is not a regular court. Unlike in a regular court, FISA courts are secret, their proceedings are secret and they only hear from one side-the government. Typically, an FBI agent swears in an affidavit the reasons why a warrant is needed in a particular instance. Unlike in any other court of law, one of the eleven District Court Judges sitting in a FISA court has no basis in fact to deny the request. Only one side is represented and there is no factual discovery that takes place-there is no questioning of the veracity or completeness of the information upon which the agent makes the request, no subsequent scrutiny, hence there is no reason to ever deny a request. No countervailing evidence is ever presented-no evidence need be presented at all other than the word of the affiant. A judge has no basis to deny a request much less assimilate enough information to form the foundation of an opinion. Sure enough, the FISA courts have never once actually denied a request for a warrant but asked for clarification-leading to an approval rate of 99.7%. This is not exactly a robust check upon the Executive by the Judiciary; even though these are real Article III District Court Judges-it is simply not judicial oversight as in any other Article III court.
The one saving grace of the NSA going to FISA court under the administration of President Obama, is that it is going to a court of law-under President Bush's push for an Executive power expansive enough to grant warrantless wiretaps for all long as it chose-it did not bother.
Another check and balance said to be in place upon the Executive is Congressional oversight in the form of the Senate Intelligence Committee. This is even less oversight than the FISA court. On March 12, 2013, when Director of National Intelligence James Clapper appeared before the Senate Intelligence Committee to give sworn testimony, the following exchange occurred:
Sen. Ron Wyden (D-Ore.): "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
James Clapper: "No, sir."
If the Director of Intelligence can lie, and perjure himself before Congress with absolute impunity-the same body that is supposed to exert some oversight over his operations, this is less a check and balance of one branch of government over another but something out of the court in Lewis Carroll's Alice in Wonderland. No one would think Mr. Clapper to have ever lied to Congress were it not for an Edward Snowden or Thomas Drake or William Binney. Not only is there no accountability-there is no actual oversight. The Senate takes the word of Mr. Clapper, who can and did misrepresent the truth because it cannot independently verify or form a factual basis upon which to conduct oversight in any other manner. The only thing missing is were a Senator in seeming homage to the Queen in Alice in Wonderland to demand a sentence first and a verdict later.
There is too steep a political risk for either political party to appear weak on terrorism however statistically small the risk of an actual terrorist event occurring is in America.[] Both political parties have embraced the creation of a private and public national security surveillance leviathan where only a few elected officials know the workings of the national security state but thousands of private contractors and their employees have top-secret security clearances. Unfortunately, Congress is not incentivized beyond hyper-political blame avoidance and the appearance of continually appearing tougher than the other party on national security to think of the long term interests of America's civil liberty or the Constitution.
For defense contractors, like Booz Allen Hamilton, and its parent company, the behemoth private equity fund, Carlyle Group, there are hundreds of billions of reasons each year, in the form of massive government contracts, to have the American people terrified into accepting more surveillance, more cyberwarfare contracts and escalating security threat inflation, which will pay for it all at the public trough. There is a revolving door between the NSA and Booz Allen Hamilton. Mike McConnell left Booz Allen to become President Bush's second Director of Intelligence-also serving under President Obama. He returned to Booz Allen to a renew his employment there for $4.1 million a year. Mr. Clapper came from Booz Allen and would likely return there after defending the government's operations made through his former and future employer.
Oversight of the Executive branch in any matter deemed to involve classified information and national security is effectively nil. To the extent that there are checks and balances on the Executive at all-they lack independence and robustness. There is no real oversight. The value of whistleblowers has never been greater.
Remember on this Fourth of July that when we call ourselves Americans, it is really the Constitution and its values that have bound all who came to America's shores, to partake of the great republican experiment we call America. You cannot tune out the revelation of completely clandestine surveillance activity, renditions or permanent suspensions of civil liberties on the basis that its political unless it is really America and not politics that you do not care about.@
R. Tamara de Silva
 Espionage Act of June 15, 1917, ch. 30, 40 Stat. 219
 65 CONG. REC. 1695 (1917)
 N.Y. Times Co. v. United States 403 U.S. 713, 728 (1971)