The Obama Administration finally responded this week to a two-year-old petition on Whitehouse.gov requesting the pardon of Edward Snowden. 170,000 signatures and a wave of anti-NSA public sentiment later, the White House formally refused the pardon alleging unspecified damage Snowden’s leaks inflicted on American national security.
The White House response made no mention of any public service benefit Snowden may have bestowed. Not a surprising omission considering most of what Snowden exposed was policy embraced by the president. Take for example the May 7, 2015 federal appeals court ruling finding the telephone metadata program Obama repeatedly defended illegal. The reality is Snowden’s leaks revealed that the growth of state power cannot be constrained—even by normal legal means—without assistance from extra-legal measures.
The intelligence apparatus not only hid behind the secrecy of its surveillance capabilities, it tried to protect itself from scrutiny by claiming that any substantive information released to a court would damage national security. It even claimed that it couldn’t explain exactly why or how this damage would occur, and never bothered to define “national security” or why it trumps individual rights.
We’re fortunate the Court of Appeals saw through this phony argument. However, it likely would never have heard the case if not for Snowden’s heroic actions—actions which the White House sneeringly called “civil disobedience.”
The government’s obstruction of justice has already wreaked havoc on plaintiffs like Wikimedia Foundation, who are fighting to maintain some semblance of Fourth Amendment privacy rights. According to Just Security:
By a vote of 5–4, the Supreme Court held that the plaintiffs in the [Clapper v. Amnesty International, 2013] case lacked standing to challenge the constitutionality of the FAA. Specifically, the Court reasoned that the plaintiffs had not shown that they had been injured by FAA surveillance, because they couldn’t establish a sufficient likelihood that their communications were being monitored under the statute. The plaintiffs couldn’t make that showing, because the government had refused to disclose, even in the most general terms, how the statute was being used. [emphasis added]
That case was decided just before the Snowden leaks. But the leaks may have signaled a shift in judicial opinion. The Circuit Court determined in ACLU v. Clapper that the Snowden leaks provided valuable new information:
The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information. [emphasis added]
According to Senator Ron Wyden (D-OR): “Now that this program is finally being examined in the sunlight, the Executive Branch’s claims about its legality and effectiveness are crumbling.”
Without leaks such as Snowden’s, public review of sweeping and intrusive government policies may never occur. These cases show that the architecture of democracy may in fact be crumbling as a result of advances in technologies that, in the possession of states, give them enormous power to spy on their citizens without detection.
All states expand their authority as a result of internal and external pressures, among them the battle for information supremacy. Logically, if knowledge is power, then more knowledge is more power. That expansion progresses toward the end goal of absolute authority. The progression may be halted by different factors including the democratic process, competition among states, and safeguards against the state’s technological capabilities.
We should consider, though, that the state’s ability to expand its surveillance power in secret may have outstripped the ability of existing democratic or legal checks against it. In short, we may be at the outset of a new era, one in which information can be acquired so rapidly and efficiently that lumbering, deliberative, and arcane processes like elections, legislation and even the court system may be at a permanent disadvantage against the power of what some experts call the “deep state,” a network of secretive government agencies and their corporate partners that form the clandestine security apparatus.
This suggests that such “illegal” acts as Snowden’s leaks are not only effective forms of counter-power, but essential to the cause of justice and limiting of government force.
Leakers and their journalist allies can serve as a bulwark against expansion of state power regardless of which government happens to be the offender. We should assume a state’s lack of transparency means it’s an offender, and is guilty until forced transparency proves otherwise.
