Snowden -- Traitor or Patriot -- Snitch or Defender of Free Speech and the Constitution
(I don't expect very many DUers to read this long post.
Just read it if you are interested in why I believe that Snowden's revelations are political speech protected by the First Amendment. And only the very patient should attempt it. Sorry, but I'm just thinking this through. I will appreciate the comments of those who take this subject seriously. No judgment of those who prefer to read some other post. Thanks.)
We are being told that Snowden broke the law and his oath when he informed the world of the huge and in his view excessive and arbitrary collection of data on electronic communications by the NSA.
But are the law that he allegedly broke and the oath that he allegedly violated unconstitutional if applied to prohibit or punish Snowden's revelations?
I think that a good argument can be made that Snowden's revelations are/were protected by the First Amendment which prohibits barring speech based on its political content.
Why do I believe that?
Let's contrast Snowden's case with the case of someone who revealed secrets unquesitonably important to our national security and that did not and would not qualify as protected political speech. That is the case of the betrayal of the secrets on how to make the atomic bomb to the USSR during the Cold War.
The secrets about making an atomic bomb, the formulas and techniques involved, were technical in nature. There was no political controversy about them. They did not involve political issues but were scientific in nature.
Whether to use the bomb, when and where, might be policy issues and discussion of those issues would be protected by the First Amendment. But revealing the technical details on making an atomic bomb was not a matter of political opinion and revealing those secrets was not political speech. It was not entitled to the greatest protection of the First Amendment. Therefore, a person who knew those technical secrets could be required to maintain the secrecy about them. The same is true of troop movements or new fighter plane technology, etc. The Espionage Act and secrecy laws apply to secrets of a technical or strategic military nature.
But Snowden is accused of bringing to light facts and documents concerning not technical or strategic secrets but the public policy of intercepting data on our speech, on our communications, on our writings and on our purchases and bank accounts and other personal and private electronic data.
Snowden is accused of revealing that our government has been collecting data on millions of Americans and that our internet and phone providers, for example, are being required to produce our personal information upon the demand and at the whim of the NSA.
His revelations concern not mere technical information but issues of public policy, issues on which political opinions can vary.
(I don't think I am expressing this very well. I'm sure that as this idea, as these concepts develop in my mind, as I better understand them, I will be able to express them more clearly. I do not expect very many DUers to bear with me. But that is OK. You are free to quit reading right now. Actually you were free to quit reading before you started. No problem.)
It seems to me that prohibiting Snowden from revealing secrets about strictly technological or strategic developments that do not concern political matters, controversial political policy matters, would be legitimate. But I think that it violates Snowden's First Amendment rights to prohibit him from revealing secrets, from speaking out and presenting evidence about what could arguably be thought by a reasonable person to be unlawful or excessive surveillance by our government.
Snowden's speech and the evidence he produced are political speech and are therefore protected by the First Amendment. (Someone may be able to dissuade me from this point of view, but I think I am understanding this correctly.)
When Manning's revelations first came to light, my reaction was that he had violated his oath and the law and therefore should be willing to be tried even though what he presented to the public was arguably proof in many cases of war crimes by the military and therefore by our government.
But as I became aware of the revelations of a number of whistleblowers especially on the issue of NSA surveillance and of course, Kriakou on our government's torture of prisoners including at least one innocent person, I began to question my assumptions about the nature of their revelations and the legality of those revelations. Each of the whistleblowers was actually warning the public of government overreaching and of the danger to our country from that overreaching.
The statements of these whistleblowers are not consistent with the cynicism or fanaticism (ideological or religious fanaticism for example) of people who betray the secrets of their country in most situations.
I watched several of these recent whistleblowers. One of them testified anonymously before Congress. The others were all, in my opinion, rather quiet types, nerdish, not attention-seekers or grand-standers. Above all, they were not extremely angry men. They did not seem to be spiteful or even cynical about the US. That did not seem consistent to me with what we know about spies who betray their countries. They were not sneaky types. They had not received compensation for their revelations. They genuinely seemed to be making the revelations for reasons of conscience.
The information that Snowden has provided us concerns issues of public policy, political opinions and facts of great political importance. It is my impression that Snowden revealed what he knew in order to obtain political action, to inform the public of what he perceived and what many, many Americans would perceive as a political policy that is wrong.
Because Snowden's revelations are political in nature, I believe that they constitute political speech and that they are subject to the highest protection. I think that prohibiting speech such as that of Snowden is unconstitutional.
Did he reveal documents that contain some technical details? I haven't seen many of those documents. The court order and a couple of other documents that I saw present political issues to the public and indeed the information that Snowden made public have set off an important and valuable political debate that will probably continue for some years unless the NSA drastically changes its policies. I do not think that Snowden's intent in producing those documents was to betray secrets but was to the contrary to give the public reason to trust what he was asking them to consider as a political issue.
So, after much thought, I think that Snowden's conduct, at least what I know of it, is protected by the First Amendment as free speech even though it involves as part of that speech, producing documents. I believe that the law protecting national secrets and intelligence information does not reach Snowden's conduct as I understand that conduct.
I do believe that the Espionage Act and the laws protecting secrets reach the sharing of information on future and planned military movements and equipment or strategy.
Again, I do not believe that any law can prohibit speech concerning allegations of war crimes. I believe that such speech is protected by the First Amendment because determining policy on revealing and punishing war crimes or on widespread government surveillance without adequate proof of probable cause is a political issue, not a military one.
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