Wednesday, July 17, 2013

Come home, Mr. Snowden

Whatever you might think of the actions of Edward Snowden in disclosing secrets activities of the U.S. government, it was clear that he believed his acts of civil disobedience were morally correct.  However, his decision to flee the country after those events indicates that he does not understand a key aspect of civil disobedience, facing the legal system of the jurisdiction in which the actions took place.  As a result, he has undermined his moral standing on the matter.

The late Supreme Court Justice Abe Fortas explained in his 1968 book, Concerning Dissent and Civil Disobedience:

Let me first be clear about a fundamental proposition.  The motive of civil disobedience, whatever its type, does not confer immunity for law violation. . . . [I]t is the state's duty to arrest the dissident. If he is properly arrested, charged, and convicted he should be punished by fine or imprisonment, or both, in accordance with the provisions of the law, unless the law is invalid in general or as applied.

He may be motivated by the highest moral principles. He may be passionately inspired. He may, indeed, be right in the eyes of history or morality or philosophy.  These are not controlling.  It is the state's duty to arrest and punish those who violate the laws designed to protect private safety and public order.

As some great people have recognized, facing the establishment's punishment enhances the moral standing of the dissenter. It might even serve to persuade the body politic that the law should be changed.  Fortas noted:

Gandhi's concept insists upon peaceful, nonviolent refusal to comply with a law.  It assumes that the protester will be punished, and it requires peaceful submission to punishment.

Fortas reminds us that, in September of 1961, Dr. Martin Luther King, Jr.:

set forth the guiding principles of his approach to effective protest by civil disobedience.  He said that many Negroes would disobey "unjust laws." He said that this must be done openly and peacefully, and that those who do it must accept the penalty imposed by law for their conduct.
Much earlier, in 1849, Henry David Thoreau addressed the moral power of accepting punishment in his essay, "Civil Disobedience:"

Under a government which imprisons any unjustly, the true place for a just man is also a prison.

If any think that their influence would be lost there, and their voices no longer afflict the ear of the State, that they would not be as an enemy within its walls, they do not know by how much truth is stronger than error, nor how much more eloquently and effectively he can combat injustice who has experienced a little in his own person. Cast your whole vote, not a strip of paper merely, but your whole influence.

In contrast, running from punishment, as Snowden has done, allows people to view the dissenter's motivation in a different way.  Indeed, the longer he seeks "kindred spirits" in other countries, the more Snowden is likely to viewed as a traitor than a hero.  In contrast, read this part of Thoreau's essay:

[T]he State never intentionally confronts a man's sense, intellectual or moral, but only his body, his senses. It is not armed with superior wit or honesty, but with superior physical strength. I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest.

Mr. Snowden's legacy resides in the United States, facing his accusers and thereby providing the potential to motivate people in the body politic to consider fully his beliefs about the unlawful actions of his government. Abroad, he is a man without a country and loses the moral authority to make the argument and forfeits the political influence to have it adopted.

It is not too late for him to come home.


Ralf Lippold said...

From Facebook:

Public disobedience goes way beyond the one-time global recognition. Whole system change of a system can only be achieved if change stays within the system that triggered the disobedience.

Well said conclusions Paul Levy - Wishing Nelson Mandela all the best for his 95th birthday, being reminded of his struggles during his time at Robben Island, and his charm to pull together the nation of South Africa. His public disobedience may be a lesson for anybody playing to his highest personal standards in a system that is obviously disfunction in major parts.

Paul Levy said...

From Facebook:

Riley O'Neill: I would understand if he would be completely worried about saving his own life. Consider Bradley Manning was in prison for three years before a trial and a considerable portion of that time he was in solitary confinement.

Diana Lenore Miller: The Snowden needs to suck it up. That is the price you pay.

Paul Hill: Manning and Snowden are not the same. Manning deliberately released information harmful not only to the US Gov't, but to individual US citizens. He did not expose some specific immoral/illegal gov't activity. He stole secrets and gave them away for some reason. Assuming Snowden's motives were altruistic, his actions were moral, if not ethical.

Beverly H Rogers said...

From Facebook:

Spoken like a child of the 60's. Bravo.

Anonymous said...

Saul Alinsky made a point that reinforces your conclusion:

"When you jail a radical, you're playing right into his hands. One
result is that the inherent conflict between the haves and the
have-nots is underlined and dramatized, and another is that it
terrifically strengthens your position with the people you're trying to organize.

They say, "Shit, that guy cares enough about us to go to jail for us. We can't let him down now." So they make a martyr out of you at no higher cost than a few days or weeks of cruddy food and a little inaction."

Schuyler Larrabee said...

From Facebook:

I could not agree with you more, Paul.

Keith W. Boone said...

He is enduring some punishment, just not prison. Why is it necessary for him to be emprisoned? I'd say he's much smarter for staying out, and much closer to achieving his goals. Pageantry such as allowing himself to be arrested would seem to serve little purpose.

Paul Levy said...

Location matters, I think.

Mitch said...

Your argument is compelling but in this case I disagree. There is a point at which martyrdom is not effective, rather it dissuades. That is likely the case here. Were there to be an open trial it might be helpful however I suspect he'd end up in a secret court. Sad, but that is the America we live in.

Paul Levy said...

Hmm, if things are that bad in America, I think you have just proven the case that I was trying to make.

e-Patient Dave said...

Recently on NPR I heard the case discussed by Daniel Ellsberg, of Pentagon Papers fame. I only heard a moment, but he basically said "Snowden did the same thing I did - as a consultant [Ellsberg was at RAND], saw clear evidence of something he saw was wrong, and decided to act." (Not his exact words.)

This post made me wonder, didn't Ellsberg stay, and go to prison?

Wikipedia says:
Ellsberg publicly surrendered to the United States Attorney's Office for the District of Massachusetts in Boston. In admitting to giving the documents to the press, Ellsberg said:

"I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.[6]"

He and Russo faced charges under the Espionage Act of 1917 and other charges including theft and conspiracy, carrying a total maximum sentence of 115 years.

The Wikipedia post continues with details of the corruption in the Nixon white house - I never knew that during the trial, Ehrlichman met privately with the judge and offered him directorship of the FBI!

For that and other reasons the judge declared a mistrial. (Holy cow, that was 40 years ago this May.)

And to return to the NSA: the Wikipedia article also has a photo of the [physical] filing cabinet that the Nixon team broke into, in the office of Ellsberg's psychiatrist. Consider what evidence we'd have today of the same break-in, done electronically ... by the NSA.

Now I'm seeing that Ellsberg staying and standing for trial is what led to the public hearing of the specifics. So I'd summarize your post as "If you want to undo an unjust law, you have to confront it."

Paul Levy said...

Exactly. Thanks, Dave, for reminding us of another great example.

e-Patient Dave said...

Mitch's comment (about the reasonable chance it would be a secret trial) is sobering. What if Ellsberg's case had been tried in secret?

As you've often said, sunlight is the best disinfectant. The Ellsberg case seems to have illustrated that.

James said...

Paul - Can I assume you haven't read Howard Zinn's "Disobedience and Democracy: Nine Fallacies on Law and Order" - his direct response to Fortas' book that you cite?

Zinn's "second fallacy" is the counterargument that you ignore here - directly on point on the MLK example:

"But why was it right for Dr. King to accept an unjust verdict corroborating an unjust injunction, resulting in an unjust jail sentence, "without complaint or histrionics"? Why should there not have been a bitter, forceful complaint across the country against this set of oppressive acts? Is the general notion of obedience to law more important than the right of free assembly? Does quiet acceptance in such a case not merely perpetuate the notion that transgressions of justice by the government must be tolerated by citizens?

If the social function of protest is to change the unjust conditions of society, then that protest cannot stop with a court decision or a jail sentence. If the protest is morally justified (whether it breaks a law or not) it is morally justified to the very end, even past the point where a court has imposed a penalty. If it stops at that point, with everyone saying cheerfully, as at a football match, "Well, we played a good game, we lost, and we will accept the verdict like sports" - then we are treating social protest as a game. it becomes a token, a gesture. How potent an effect can protest have if it stops dead in its tracks as soon as the very government it is criticizing decides against it?"


Anonymous said...

Yeah, that worked out well for Manning - public outcries fall on deaf ears in the government's "off with his head" mentality. Good reason for leaving in order to complete his work.

Mike Taylor said...

However, his decision to flee the country after those events indicates that he does not understand a key aspect of civil disobedience, facing the legal system of the jurisdiction in which the actions took place.

Well, that's the problem, isn't? As we've seen with other who are inconvenient to the US Government (Bradley Manning, Aaron Swartz), what you face is an illegal system of jurisdiction. Had they got their hands on Snowden, they wouldn't have tried him, they would have detained him indefinitely without trial in solitary confinement as a terrorist.

I wouldn't have stayed around to face that, and neither should anyone else.

The fact that, in contravention of numerous international laws, the US has now made it impossible for Snowden to travel to any country where he could obtain asylum, has forced him now to seek asylum in Russia. Is that what the US wanted? I doubt it. But there's a pervasive failure to favour chest-beating over thinking through consequences.

ivory said...

Incarceration in the California Prision System has been declared cruel and unusual punishment by the Supreme Court. We still have people waiting for justice in Guantanamo - habeas corpus anyone? - so while I understand the emotional appeal of your argument, I think sentencing someone to await trial in prison with the rapes and assaults that are part of everyday life there is more than we should ask.

Anonymous said...

I disagree. Snowden would be foolish to come back to the US where he would likely be tortured as was Bradley Manning. I find it appalling that people think that Snowden has any responsibility to martyr himself.

Why should he do so? America has a record of taking in dissidents from other countries who faced certain unjust imprisonment or torture. Right? What makes Snowden any different from them?

You have a picture of Martin Luther King Jr. The FBI sent him a letter blackmailing him and demanding that King commit suicide. Right?

Snowden did the honorable thing and exposed the unconstitutional spying on Americans. That's all that he owes Americans. He most certainly does not owe us his mental or physical health.

It is shocking that supposed liberals or conservatives who rail against "big, intrusive government" would demand that Snowden turn himself in. Did not the US government just break international law by having the plane of Bolivia's president forced down all in some Orwellian and tyrannical scheme to hunt down Snowden? Clearly, the rule of law is dead.

Paul Levy said...

Thanks to you all for your contrary views. I fear, though, that the approach you offer will soon lead to public amnesia about Snowden--and his cause.

Vijay Venkataraman said...

Ridiculous. Why should one accept punishment for telling the truth?

Look at the way the US Govt behaved. They called him traitor. Made European countries to ground the plane of Bolivian president and what not...

Let Snowden's case be a new one in histroy. Let this stand as that one which paves the way for different way of civil obedience.

Later we can quotes this in our blogs! Not the older ones.

Dave said...

Paul, read the open letter to Snowden found at the link below to understand why he is averse to going to jail.

Brian said...

I appreciate your commentary on Snowden, morality, and justice in the face of civil disobedience. Your comments, and those speaking through history, reminded me of the virtue of integrity. The best treatise on the subject – so titled “Integrity” – was published in 1996 by Stephen L. Carter (a Yale law professor); Harper Collins Publishers. In it, Carter denotes 3 critical, and requisite, components of integrity and defines acts of integrity as:

1. When a person, a moral agent, takes the time to do the moral hard work of discernment. S/he comes to a point of arriving at what the “good” action is/should be. THOUGHT - INTENTION

2. This person, then, steps out and does the “good.” S/he not only thinks about what is right – they do it – even at some personal risk. ACTION – MORAL COURAGE

3. Upon taking such action, the person stands up and says, “Yes, I did that, and here is why,” even at some personal risk. S/he is willing to take criticism &consequences. RESPONSIBILITY & ACCOUNTABILITY

Amid the clamor of our aging democratic society’s demand for tolerance, kindness, and diversity (of opinion among other types) as virtues that should be accepted by all, the virtue of moral courage that leads to acts of integrity seems to be lost. Moral courage, it was said by Aristotle, is the first of human virtues because it makes possible [or ensures] all of the others. Others have said that moral courage is a twin or facilitator of virtues such as integrity. To be sure, persons of integrity are more than simply honest (see Carter’s treatise), and they are not perfect. Many of us will have “defining moments” when we can chose to think/act/take responsibility and do so “courageously” or “with integrity.” When persons do so regularly, we recognize them as being “persons of integrity or character.” But most of us don’t do so always, even if our failures are only in private.

Note that the type of integrity that Carter writes about is so very different from the salesman who works for “Integrity Company, XYZ” or the advertisement by the used car lot that says “We finance with integrity.” There is a market appeal that the word “integrity” has, or at least it conjures up some notion that may or may not truly be understood by the public. Perhaps we know we should act with integrity, or be people of integrity, or it was something we learned in a particular faith community from historic exemplars. The word also means “to be whole,” and your commentary, and the words of those cited among so many others (Abraham Lincoln, Rosa Parks, and Nelson Mandela – who turns 95 years old today – come to mind), even alludes to this wholeness that is missing when one does not take responsibility and be subject to accountable laws and governing principles.

I once had the pleasure of meeting Professor Stephen L. Carter at the 2008 Southern Festival of Books when I lived in Nashville, TN. There, he signed a copy of his new novel The Palace Council, and there I told him how impactful his earlier non-fiction book Integrity was for me. I took the liberty to copy him on this email.

Thank you, Paul, for having the moral courage to write so effectively and in such a public space.

Budd said...

On the other hand, Daniel Ellsberg says he might as well stay away. Look at what has happened to Bradley Manning, a different case, but illustrative of the Obama-Holder-Military response to whistleblowers or others that they view as traitors, and their continuing view of what does and does not constitute torture.

Why subject yourself to that from a fundamentally unjust state that is becoming more so?

It's different if you are a person of substantial standing in a country, like Sakharov, a national hero. Or MLK, or Mandela. They were continuing witnesses to an unjust state. Smaller fry like Manning and Snowden just disappear into our own version of the Gulag.

If I sound like an SDSer, I wasn't and am not, but the assault on civil liberties is more and more clear. Try being an investigative reporter these days and find yourself under threat of jail!

Peter said...

Points well made. However, anyone familiar with Mass. history should know that while Thoreau was blowing hard in his own fashion. He went home for lunch every day!!

Paul Levy said...

From Twitter:

@timoreilly: Good perspectives from Abe Fortas' book on civil disobedience.

@copiesofcopies: Tell me how Manning's interminable solitary confinement has forwarded his cause.

@GonzOakland: Self-sacrificing civil disobedience is for Baby Boomers who still haven't learned that it isn't worth it.

‏@MediErias: Mr Snowden act was aimed at informing the pple abt wats happening nt bringing USAs skeletons to light!

@Spinchange: He's totally compromised his moral standing. Russia now seeks more control over the Net: (NYT)

@Colin4ward: How can we call for him to come home after what happened to Manning?

@jongreen_uk: A cynic might suggest that a Supreme Court Judge _would_ advocate protestors to face prosecution.

@timoreilly: I agree. The treatment of Bradley Manning is a counterargument. But consider Nelson Mandela...

@copiesofcopies: Mandela spent 27 years in prison after his (involuntary) capture, in a different country, and a different time.

@nickdawson: Your Snowden post - wow! Thanks for surfacing what’s been below the surface, unidentified in my thoughts on this.

@dpwils: Snowden "does not understand a key aspect of civil disobedience" & should return to the US. Great article.

Susan and Lisa said...

From Facebook:

Susan Condon: In a perfect world, but right now I think he is just scared of rotting in jail and being forgotten

Lisa Hartwick: Paul, thanks, this is so aligned with how I've been thinking about this situation.

Anonymous said...


"A fundamentally unjust state that is becoming more so" - ???

Wow. Try Russia or North Korea. Do not ever forget that we are lucky to live where we live (assuming you live in the U.S.), despite all our warts.

nonlocal MD

@damiendonnelly said...

I think you are missing the point - he is home, we live in a global society now.

Paul Levy said...

See nonlocal MD's comment above: It is not a true global society until the same laws apply everywhere, tweets and blogs notwithstanding.

Mitch said...

Yesterday we exchanged thoughts regarding your civil disobedience post and being willing to accept the consequences. Don't know if you saw the judge in the Pfc. Manning trial is allowing the charge of aiding the enemy which carries life. If he were my son and able to do so I'd advise him to seek asylum.

In today's world I suspect the government would try to execute Daniel Ellsberg.

Sad and scary times. I worry about my country.

Linda Galindo said...

A recent and powerful example of what you speak of Paul is College senior, Tim DeChristopher, Bidder #70, monkey-wrenched the contentious oil and gas auction. Being willing to accept the consequences, unlike many CEOs who hide behind the corporate veil of no "person" to hold accountable. Owning the outcome of your actions BEFORE you know how things will turn out makes a difference and demonstrates leadership. Right now the Snowden story is more about his evasion than his cause.

Anonymous said...

Perhaps you believe that like the king, the US government can do no wrong. If that is indeed what you believe, your argument needs very few words -- far fewer than you post here. But not all of us agree. Snowden reported long term criminal activity by a large section of the federal government. Following Snowden's report, the other parts of the US government did nothing to apprehend the criminals -- or even to stop the continued crime. They are, in the words of criminology, accessories to the crime. They do not have any moral altitude. But now you argue that when someone reports a crime, he should announce himself to the criminal and wait around to get shot. Frankly, sir, that is not a reasonable argument, and many of us do not agree.

e-Patient Dave said...

I saw the deep, thoughtful, two-part Frontline piece on Snowden, and I now think nobody can have a well informed opinion on the case without seeing the large body of interviews they collected from CIA and NSA people who were involved not only in the events leading up to his escape but the various deep secret operations that ran for years, ultimately leading up to his escape.

I personally came away with the impression that there's no way he would have gotten an open trial. I don't think he's a Gandhi or MLK - that's not my point. But I'm pretty sure the America we grew up in doesn't exist anymore.

If you don't already know the facts about national security letters, you can't even be discussing this with any awareness at all. With one of those you're not even ALLOWED to have an open trial.