Edward Snowden -- Citizen-Traitor

                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.   

Comments (2)
Posted on October 31, 2019 at 1:46 am by MP
What role for mens rea?
I'd be interested in your take on Snowden's position in his memoir that he would willingly stand trial in the United States, if he could present a whistle blower defense to the jury, explaining why he did what he did and letting the jury decide his fate. If the relevant question is whether Snowden is a "traitor," my initial reaction is that any law that could result in conviction of such a charge must have a mens rea component. If the government is instead interested only in whether Snowden violated a federal statute prohibiting “unauthorized communication of national defense information," or similar material, so be it, but this seems to deprive the jury (and American people) of any ability to resolve whether he is traitor or citizen.

Posted on October 15, 2019 at 2:56 am by JL Pottenger, Jr.
Snowden Blog
Norm:
Fine framing of a difficult choice.
But I [we?] wish you would share YOUR conclusion, if only so that we may measure our own against it! I know that I come out on the "Citizen One" side of the balance beam -- in part, at least, due to my willingness to credit each one of us with interpretive authority over both the Constitution and our own moral lives.
For Display:
Confidential:
(Won't be displayed with comment)

Comment must be approved,
then will show on this page.

What is the year?
x

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Personal Website

www.normpattis.com
www.normpattis.com

Law Firm Website

www.pattislawfirm.com
www.pattislawfirm.com

I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

Pattis Video