Yesterday, Georgia Institute of Technology law and ethics professor Peter Swire published an op-ed in the Washington Post in which he tried to sort through the "culture war" between spies and techies over how they view Edward Snowden. My views are pretty clear. What struck me was Swire's assertion that he would think better of Snowden had he chosen to go to jail for making his revelations about unconstitutional domestic surveillance by the National Security Agency. Swire writes:
After wrestling with the issue, I think that Snowden could have been a conscientious objector — but he has thus far failed the test. A central element of nonviolent dissent is to move society's conscience by taking personal responsibility. Mohandas Gandhi and Martin Luther King Jr. went to jail for their beliefs, but Snowden ran away.
Going to jail is, of course, a lot to ask of a person. But Snowden knowingly set himself above the law, claiming a higher morality. Full clemency, without any jail time, would create a bad precedent in holding others in the intelligence community accountable, should they break security rules.
The moral leadership and the sacrifices made by Gandhi and King deserve our highest respect. Gandhi and King were imprisoned for the crime of fighting for liberty. However, both men were able to communicate with and guide their movements from their jail cells. After being convicted of "sedition" in 1922, Gandhi was sentenced to six years of imprisonment, of which he served two. The known charges against Snowden could add up to 30 years in prison.
Martin Luther King, Jr. was arrested 30 times. In 1960, he was sentenced to four months in prison for participating in a lunch counter sit-in in Atlanta, Georgia. He was quickly released after the intervention of then-presidential candidate John F. Kennedy. Most famously in 1963, King was jailed for eleven days in Birmingham, Alabama for protesting government-mandated racial segregation. From his jail cell, King composed one of the great documents of the civil rights movement, The Letter from Birmingham Jail.
Both the British Raj and the segregated South were brutal, but their functionaries were not able to impose the sort of totalitarian silencing that our current legal system enables with regard to cloaking the illegal activities of the surveillance state. Even now, the NSA has stamped "top secret" its own "talking points" outlining its claims against Snowden and refuses to release them in response to a Freedom of Information Act request. The liars at the head of national surveillance state had blocked any way for whistleblowers like Snowden to alert Congress and the public to their violations of our constitutional rights.
Interestingly, Swire does not mention the much more relevant civil disobedience case of Pentagon Papers leaker Daniel Ellsberg who, like Snowden, was charged under the Espionage Act in 1971 and could have been sentenced to 115 years in prison.
Ellsberg pointed out in a July, 2013 Washington Post op-ed that Snowden today would be imprisoned and held in total isolation and incommunicado. His trial, when it would occur, would be closed to the public on the excuse that an open trial would harm national security. Ellsberg noted that after his arrest he was immediately released on his personal recognizance. That would not happen today. Instead, Ellsberg writes:
I hope Snowden's revelations will spark a movement to rescue our democracy, but he could not be part of that movement had he stayed here. There is zero chance that he would be allowed out on bail if he returned now and close to no chance that, had he not left the country, he would have been granted bail. Instead, he would be in a prison cell … incommunicado. … He would almost certainly be confined in total isolation….
Snowden's contribution to the noble cause of restoring the First, Fourth and Fifth amendments to the Constitution is in his documents. It depends in no way on his reputation or estimates of his character or motives — still less, on his presence in a courtroom arguing the current charges, or his living the rest of his life in prison. Nothing worthwhile would be served, in my opinion, by Snowden voluntarily surrendering to U.S. authorities given the current state of the law.
I hope that he finds a haven, as safe as possible from kidnapping or assassination by U.S. Special Operations forces, preferably where he can speak freely.
What he has given us is our best chance — if we respond to his information and his challenge — to rescue ourselves from out-of-control surveillance that shifts all practical power to the executive branch and its intelligence agencies: a United Stasi of America.
Swire is wrong. Snowden deserves our admiration and support.