Edward Snowden continues his journey down the Freedom House ladder. He left the United States (56 on on Freedom House’s 60-point civil liberties scale) for Hong Kong (51) then on to Moscow (19). In the last 24 hours, rumors have had him going to Venezuela (24) or Cuba (10), though the present top contendor is Ecuador (36), a middling protector of civil liberties. If he does make it eventually to Uruguay (58) or Iceland (60), then his earlier talk of Hong Kong’s “spirited commitment to free speech and the right of political dissent” will seem less instrumental than it currently appears.
Setting aside Snowden’s current excursions along the despotism trail, I wanted to reflect briefly on whether it is possible to think through the ethical obligations of being a whistleblower. We live in a democratic society where we have decided to allow our representative institutions to make certain decisions on our behalf. Those institutions have decided certain aspects of governmental functioning can be secret. Secrecy is inherently in tension with representative government because the content of the secrets might inform the representation we choose. Recognizing that there is a tension, however, does not allow us to relieve that tension through unlimited whistleblowing.
The U.S. system has accommodated whistleblowing by accepting two channels in addition to the formal chain of command: the inspector generals at various executive departments and the U.S. Congress. All indications are that the Select Committees on Intelligence in both the House and the Senate were informed of the program, though Director of National Intelligence Clapper’s statements in unclassified sessions are understandably worrisome. In a March hearing of the Senate Intelligence committee, Clapper responded to Sen. Wyden’s question of whether the NSA collected “any type of data at all on millions or hundreds of millions of Americans” by saying “no” and then adding “not wittingly.” Clapper has subsequently clarified his answer as the “most truthful” or “least untruthful” answer possible. All indications suggest that Wyden had been informed of the scope of the program in classified briefings, even if Clapper’s response in the March unclassified session is dubious.
The fact that two Senators—Udall and Wyden—were concerned about the program is not proof that the program should have been unclassified or eliminated. Wyden and Udall had both appropriations and legislative mechanisms they could have availed themselves of if they wanted to force greater disclosure of executive activity or restrict it, and if they were able to convince their colleagues of the validity of their concerns. They were unable to do so.
In addition to legislative oversight and inspector generals within the executive, there is an additional check on classified activities in this area: the Foreign Intelligence Surveillance Act (FISA) court, which provides legal authorization for certain types of intelligence gathering activities, and was created by the eponymous Act. The consensus view in the media about the FISA court suggests it is an inadequate oversight body, largely because it rejects very, very few requests. I say suggests because there may be an important selection bias if reports are true that the FISA court often asks the government to modify or withdraw unsatisfactory requests. We do not have data on modification or withdrawals of FISA warrants, and if the FISA court routinely informs executive officials that a warrant will not be viewed favorably, it would be no surprise if the formal rejections are scant.
But, let’s imagine that one buys the argument that U.S. inspector generals, and the U.S. Congress, and the FISA court are all insufficient checks on the executive. Is there a right to whistleblowing other than through the channels established by law? I’m not certain. But to the extent that there is, it seems as if it must occur after established channels have been attempted. Why? I think whistleblowing only makes sense morally if is viewed as a type of civil disobedience.
I’m not a political theorist, so I go back to major works when I’m trying to think through something. And John Rawls has a long section on civil disobedience in A Theory of Justice. Rawls frames the issue: “At what point does the duty to comply with laws enacted by a legislative majority (or with executive acts supported by such a majority) cease to be binding in view of the right to defend one’s liberties and the duties to oppose injustice.” He defines civil disobedience as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.”
So, sounds like whistleblowing. But are they the same? And does Snowden meet the definition? Rawls lays out several requirements, but two are especially germane to the Snowden case. The first is “that normal appeals to the political majority have already been made in good faith and that they have failed. The legal means of redress have proved of no avail.” It’s unclear in Rawls whether this is an individual or general requirement. Could Snowden, perhaps seeing the Wyden-Clapper interaction, determine normal appeals have failed, even if Snowden himself never pursued “the legal means of redress”? I’m dubious that Snowden met this requirement, but I can at least see what the argument on the other side looks like.
The other requirement is civility, met through publicity and nonviolence. Rawls is reasonably explicit on these requirements, and he goes further: civil disobedience expresses “disobedience to the law within the limits of fidelity to the law, although it is at the outer edge thereof. The law is broken, but fidelity to the law is expressed by the public and nonviolent nature of the act, by the willingness to accept the legal consequences of the act.” (Emphasis added.) Rawls goes on at some length, but the basic mechanism he outlines is that by accepting the legal consequences, it forces society to reflect on the rules it has enacted. If the society, even upon the reflection engendered by the act of civil disobedience, proceeds with the punishment, this suggests the convictions of the political community differed from the dissident, which happens in democratic countries. In Rawls’s words: “We must pay a certain price to convince others that our actions have, in our carefully considered view, a sufficient moral basis in the political convictions of the community.” Otherwise, individual’s nullification of rules they deemed unjust would lead to considerable social instability, even in a “nearly just” society. We would permit an individual to arrogate to himself governing authorities that were not vested in him.
I find exile, Snowden’s apparent choice, to be insufficiently similar to the requirement of acceptance of legal consequences, and hence the act is not civil disobedience by definition. It does not meet Rawls’s requirements of publicity, since it was only public after Snowden had escaped legal consequences. Even if I were to view Snowden’s actions as civil disobedience, it is still possible for me to view it as something that deserves punishment. By accepting punishment, the civil disobedient only forces us to face society’s rules squarely. The civil disobedient is not always right and so hence the civil disobedient should not always go unpunished.
I do think this opens up interesting questions of whether an individual can ethically “shoot and scoot,” via civil disobedience followed by pursuit of political asylum elsewhere. By no means would these requirements prohibit asylum more generally. Snowden could have sought political asylum if he would have been badly treated in the United States for his political opinions. This is not what occurred. Snowden poor treatment is a result of his violation of a non-disclosure agreement. His political opinions could have been expressed vocally without consequences, as is evidenced by his contributions to the 2012 Ron Paul campaign.
At the outset, I said secrecy is special because it is in tension with representative institutions. But it is special in another way, that complicates the acceptability of civil disobedience in such cases. Secrets once revealed cannot be un-revealed. They are forever public in a society free of censorship. I am troubled by this lack of reversibility. A “sit-in” or an unauthorized protest march does not permanently alter a social situation in ways that unified social action cannot fairly quickly repair. An individual that leaks state secrets—particularly in large quantity—might do lasting damage, something I think insufficiently considered in Rawls’s treatment several decades ago.