Oct
14
I pre-ordered Edward Snowden’s Permanent Record, his autobiographical memoir of how he came to be – well, what did he become? Is he a traitor? Or a hero? Such is the confusing character of our times that I could see, prior to diving into the book, a case for both perspectives.
Considered from the perspective of Shoshana Zuboff’s The Age of Surveillance Capitalism he is certainly prophetic, if not a hero. Ms. Zuboff lays bare a brave new world of digital surveillance, with Apple, Facebook, Google and the like becoming digital overlords. Is it any surprise that the Government would sign on to total knowledge in the name of security?
Possessed of superior computing skills and innate curiosity, Mr. Snowden found himself, in his twenties, with one of the nation’s highest security clearances, able to dip at will into the belly of the national security beast to learn a truth that should shock: the Government aspires to know everything about us, our every keystroke and browse of the internet stored in massive servers, our lives available to curious security officers whensoever they will. Surely this isn’t what the founder’s had in mind at the time the fourth amendment first limited the Government’s ability to search?
Call Mr. Snowden a hero, then, at least when it comes to the threat we pose to ourselves.
But shift the lens somewhat, and consider Mr. Snowden from the perspective offered by John Carlin’s Dawn of the Code War. Mr. Carlin, a former senior prosecutor in the Justice Department, describes the challenges of prosecuting and combatting what amounts to digital terrorism and crime. Yes, the digital age has made all sorts of information about us available to our Government. But that information is also available to organized crime – there is, I think, a difference between the government and organized crime – and to foreign powers that do not mean us well, Russia, China, Iran and North Korea, to name the big four. How well are we prepared to meet the threat that comes from outside our borders, or form those who regard the rule of law as a mere challenge to overcome? Doesn’t revealing the confidential security structure we use to defend ourselves assist our enemies?
Call Mr. Snowden a traitor, then, at least when it comes to the threat others pose to us.
Candidly, Edward Snowden is both a hero and a traitor. The digital age has poured new wine into the old skins of our law and social relations. The result is that old structures don’t contain the new reality. Things are bursting at the seams all around us, and we lurch like drunkards from one extreme to the other, somehow looking for new ideals and models to replace the old.
The most surprising thing about Mr. Snowden’s revelations in Permanent Record is just how ordinary, likable and even boring he is. I had expected some disaffected soul, ruminating on what the world owes him, nursing imaginary slights or dark, narcissistic fantasies. (Can you really listen to Julian Assange, for example, without imagining what a little more milk of human kindness might have nourished?)
That’s not Mr. Snowden. He’s a descendent of pilgrims, with a long family history of military service. He seems to have grown up among loving parents; there was an abundance of love, if not material things. He tells a revealing story about his father, one that left me marveling at the power of paternal love.
Pere Snowden was a Coast Guard career officer with a specialty in electronics. When personal computers first hit the market, he bought a Commodore 64. He sat alone learning to use it, and playing games. Young Edward “spied” on his father from a window overlooking the living room. When his father discovered him, there was no punishment for staying up too late. His father swept him into his arms, plopped him down on his lap, and gave the boy the run of the computer. Thus was born a passion to understand computing. Mr. Snowden grew up surrounded by love; he appears not to have known fear until later in life, when he came to fear his own government.
Mr. Snowden worked in the NSA and the CIA, leveraging self-taught computer skills and certificates from Microsoft into a career as a senior consultant for private contractors managing the intelligence community’s hardware. He notes the irony that young folks with little or no life experience, but superior computing skills, are entrusted with the nation’s most vital secrets.
And herein lies the riddle of Edward Snowden, the Citizen-Traitor. He genuinely believed in the Constitution. He reports carrying a pocket-size copy of it and reading it endlessly. His reading seduced him. Isn’t he one of the people referred to in the preamble? Don’t the words mean what they say? What about the fourth amendment guarantee against unreasonable searches and seizures? Mr. Snowden feels betrayed, suddenly. He decides to take matters into his own hands.
He has, we all have, the power to do that, of course. But we can’t do so with impunity. The grand clauses of the Constitution – “due process,” freedom from “unreasonable searches and seizures” – these are battleground terms, the meaning of which is labored over in courts throughout the land and are then decided, in ways that bind lawyers, at least, by the Supreme Court. The Constitution is a document written in code. Lawyers and judges decode it.
Perhaps it shouldn’t be that way. Perhaps Mr. Snowden is right to feel betrayed. There is a crisis of legitimacy in the land. Big government and big data terrify. But more terrifying, I suspect, is a world without the meliorating influence of institutions designed to protect visions of the public good. I am a happy anarchist up until the time that a Chinese intelligence agent crashes the power grid – then I want protection.
The republic is frayed. We struggle for a vision of the public good. Mr. Snowden is both public enemy number one and citizen one. In the contested terrain of the digital world it is hard these days to distinguish friend from foe. Mr. Snowden’s memoir reminds us why the effort to do so is more urgent than ever.
Oct
10
I understand and accept the syllogism, I really do:
"All men are mortal.
"Mr. X is a man.
"Therefore Mr. X is mortal."
It’s a sing-songy soliloquy.
But substitute the name Warren Eginton for Mr. X and the syllogism will rip your heart out. Judge Eginton, or, simply “The Edge,” or “The Edgemeister,” as he was known to some, was one of the good guys. He presided as a United States District Court Judge in Connecticut for some 50 years before dying this week, at 95.
I had heard he was ill, and meant to go to see him. Cases and controversies got in the way. I didn’t make it a priority. A phone call dropped the news of his death like a bomb, leaving me numb, sad and filled with regret about not having spent more time with him.
I don’t know how many cases I tried before him. But I do recall that he was unflappable and I will never forget the twinkle in his eye when legal doctrine collided with the messy reality that is trial. The Edge got it. He understood what lawyers do. He was not in love with his gavel, and he never forgot that the law is less arid doctrine than condensed human strife.
Maybe 20 years ago, I squared off with the Government in a case involving the seizure of a valuable home from a man believed to be a drug dealer. The Government couldn’t make its case against the suspected narcotics trafficking with proof beyond a reasonable doubt, the criminal standard. So it sought to seize the man’s home by the lesser standard of proof to a preponderance of the evidence in a civil proceeding.
It struck me as a shady move by Uncle Sam, and I had plenty to say about it at trial. Some of what I said crossed the line distinguishing zealous advocacy from abuse. If memory serves, I may have jabbed a United States Attorney in the chest – out of the jury’s presence, of course – and taunted the prosecutor, perhaps suggesting we take the conflict out into the hall, or, perhaps the parking lot.
The Government, of course, was outraged. The next day, it moved for sanctions. I had them coming, I suppose.
Judge Eginton chuckled as the Government made its pitch to punish me for litigation thuggery. I don’t recall the exact words the judge said, but it went something like this. (He had a way of speaking in a slow, bemused drawl, savoring, I suspect, the sound of the law wrapping itself around the facts.)
“I’m not going to impose sanctions. This kind of thing sort of reminds me of when I was trying cases. These things happen. But don’t you think you owe the Government an apology, Norm?” I seem to recall something that looked, from the well of the Court, like a wink. I accepted the olive branch and mumbled "Uncle Sam, I am sorry.” The judge chuckled and we proceeded on with the case. (In the years that followed, the prosecutor and I became good friends, and remain so to this day.)
Judge Eginton was like that, a diplomat capable of bringing out the best in people due to the example of his sheer good will.
A few years ago, I was stunned when he asked me to be his guest at a several day conference in New York, the Second Circuit Judicial Conference. I accepted, of course; I don’t spend much time in federal court these days. I hadn’t seen Judge Eginton in a long time.
We reminisced about cases and characters. We talked about the state of the law, and my perceptions of the bench. The courts have become awfully stuffy, I told him. Judges seem to succumb to robitis, I told him, an affliction that transforms decent people into something like robots. Why is that? I asked him.
He just chuckled, and then asked me about lawyers he had not seen in a while.
He was good that way, an observer, and willing participant, in human folly. He never took himself too seriously. He had a way of blunting sharp edges.
I make a practice of never saying “Your Honor,” to a judge. It’s an unnecessary affectation. A judge is a judge; no more, no less. Even so, it was an honor to appear before Judge Eginton.
It is hard to fathom never being able to do so again. There is nothing sweet about the sorrow that comes of saying farewell to this fundamentally decent human being.