The NSA, Snowden, and national security

February 2014

Abstract:
The U.S. government was responsible for the Snowden episode, but failure by the government doesn't justify national betrayal by a citizen. The oath of secrecy remains sacred, but to avoid security breaches the government must provide safety valves for would-be whistleblowers.

There are those who profess to believe that the U.S. government should not have secrets. It is claimed that a democracy requires total transparency in government, to the extent that no official act or document is hidden from the citizens (or from the rest of the world). This contention is difficult to refute on purely theoretical grounds – the basis of democracy is after all that the people have control over their government. If the government can keep information from the people, and can itself determine what information to withhold, the people can hardly be said to be in control.

Yet, a government cannot be run on a purely theoretical basis, it must take account of realities. (Actually, it can only deal with perceived realities, and the difference between these two concepts makes all the difference.) The realities that most motivate a government to hide from public view its deliberations, plans, and actions are those that involve it in conflict or competition: domestically crime and finance, internationally military and diplomatic matters, and – more recently – the battle against non-state violent groups motivated by "holy war" for their version of Islam.

World affairs are often compared to a chess game. Chess, like most sports and games, is based on the ancient instinct of self-preservation and its offspring, self-interest. When I play chess I do not announce to my opponent the reasoning behind my move, which is in all cases intended to bring me gain and my opponent pain. Without that motivation the game would make no sense. An even better analogy of world affairs is a giant poker game, with many players with very different stacks of chips. So every government on Earth has concluded that its obligation of self-preservation is best served by holding some cards close to the chest. Even the most democratic of governments has concluded that this obligation may trump the theoretical requirement for openness.

But self-preservation of what? It is generally agreed, and established in international law and the U.N. charter, that a recognized nation has the right to exist free from aggression by neighbors, but has also the obligation to defend itself. And just as in chess and poker, defending oneself requires shielding some things from the competitors and from public scrutiny. Unfortunately, it is too common that the party in power in a government decides that it – the party – needs to be defended, and the power to classify documents is abused to prevent damage to the party. Every dictatorship works in this fashion, and probably every "democratic" government would, in the absence of effective control over the classification system. Some abuse based on party politics likely occurs in every government. We can see that the system of control over government secrets represents one of the crucial elements, and one of the greatest hazards, in preserving a democratic society.

Riding to the rescue comes one of modern man's great inventions: representative democracy. Here we not only allow our elected legislative representatives ("Congress" in the U.S.) to make our laws and determine national policies and priorities, but we engage them hold the government's feet to the fire in all matters; to be, or to oversee, the control mechanism on the government that, among other things, monitors and controls the classification of government secrets. The legislative body must therefore be largely independent of the executive branch of the government. This condition is better approximated in the U.S. than in the traditional European parliamentary systems, where the government is chosen by the parliamentary majority, which thereby holds the same partisan stake as the government. Even in the U.S., where Congress and the President (the administration) are separately elected, these may be controlled by the same party, with danger of partisan abuse of all sorts, including of the classification system. Congress has attempted to get around this by establishing the Government Accountability Office as a bi-partisan (supposedly non-partisan) watchdog whose domain includes review of allegations of official misconduct. Unfortunately, the GAO – one of the most trusted agencies in government – does not have authority over the management of the government's security secrets, which is controlled by the President.

So the government has secrets. In the U.S., several recent executive orders from the President have sought to avoid "overclassification," limiting the use of the classification system to documents whose loss would demonstrably damage or degrade national security. The "Pentagon Papers" case from 1971 was a reminder that the practice of classifying documents to avoid embarrassment and/or political fallout had its own damaging fallout, and must be stopped. There may be some of that left – the classifying authority still has its own self-interests – but there's no doubt that the U.S. government is today far more transparent than forty years ago.

So what are the responsibilities of the employees who have given clearance to work with classified material? The bedrock of the system is the employee's oath not to pass classified material to unauthorized persons. This requirement is absolute; it does not depend on the employee's opinion about the material he handles. In the Pentagon Papers matter from 1971, the legal case against Daniel Ellsberg, who released the Defense Department's classified history of the Viet Nam war to the public – admittedly violating his oath – was never tried, but thrown out of court as a result of the Nixon administration's unethical and illegal efforts to dig out dirt against Dr. Ellsberg. In any case, the general opinion at the time, even in Defense, was that the PP's never should have been classified, as Secretary of State Dean Rusk stated publicly.

The case of Edward Snowden is dramatically different, as has been his behavior. Where Daniel Ellsberg turned himself in and pronounced himself ready to face the consequences of his action, Mr.Snowden fled to countries that have no love for his homeland. In a fit of moral outrage over perceived violations of civil rights by the National Security Administration, Snowden decided to punish the nation by releasing detailed information about worldwide U.S. intelligence gathering and informing al-Qaeda and other terror groups about U.S. plans, methods, and vulnerabilities. The damage to U.S. security from this release is unquestioned. Snowden's rationale for violating his oath is that he is convinced that NSA acted illegally, and that release of the classified material to the world was the best way to rectify the situation. He must thus have reasoned that the value of his release outweighed the harm to the nation's security. It's not clear that Mr.Snowden should be making that decision for the nation.

I know many will agree with me that a confidential program cannot make separate security rules for each employee, individualized to that employee's level of moral judgement. It is necessary to make one rule do for all; in the case of U.S. military and other security organizations, the rule is simple and uniform, as reflected in Mr.Snowden's oath. It's not known whether Mr.Snowden, who trusts his own moral judgement, believes that all confidential employees should have the same right of moral imperative that he claims for himself, or that he is special enough to have his own rules. My judgement is that both of those interpretations would make nonsense out of any security program. We cannot add to the words of the employees' oath of secrecy the phrase "unless I believe it's better to reveal the confidential material."

The Snowden case, as others before, poses the question: how should a confidential employee proceed if he feels or suspects misdeeds in the program where he works? I sympathize with the plight of an employee who finds what he considers improper, unethical, immoral, or illegal activity by his employer, and who finds that no recourse is available to him. The department will have internal procedures for reporting minor infractions, but for major, program-wide infractions such as Snowden suspected there is no procedure. But here's what not to do: you do not betray the program and your country; you do not insist that your judgement is right and the government's is wrong; you do not – you have no right – to make yourself the judge of the nations's security needs and procedures; above all, you do not betray your country to its enemies.

So what should Snowden have done? He should have thought of the Congress and its oversight role over the Executive department. He should have quit his job and provided the congressional Intelligence Committees with the evidence of NSA excesses, in the hope that Congress would recognize their seriousness and would attempt to correct any problem. And above all, he should have contacted an attorney or a legal firm or association devoted to civil rights, such as the ACLU, who would have helped him resolve the issue in a legal manner. Evidently, Mr.Snowden had no faith in any American recourse, political or legal. I'm sorry that he felt that "the system" would fail him; I think he was wrong. With a little more wisdom and courage, he could have been the impetus for positive change in the U.S. without at the same time betraying the nation.

The issue in the end is not Mr.Snowden. He's the past. But there is a lesson that our government needs to learn again, one that should have been learned many times before: Where an agency is operating furtively on the edge of propriety, it must realize that some employees will have qualms about their work, and a small number will be motivated to take action against it. If the government does not provide a confidential avenue of last resort where employees may try their case, whether in the courts or through our elected representatives, with no fear of reprisal, Snowdens will reappear, and will lash out in their frustration to demonize their country before the world. It's understandable, though unfair and unfortunate; God knows we don't need any more demonizing.