Wednesday, June 3, 2015

Trevor Timm - Snowden's leaks forced NSA reform on Congress. The US would still jail him

The catalyst for Congress’ historic vote on NSA reform on Tuesday – the same person who led to a federal court to rule that NSA mass surveillance of Americans was illegal – remains exiled from the United States and faces decades in jail. The crime he’s accused of? Telling the American public the very truth that forced Congress to restrict, rather than expand, the spy agency’s power for the first time in over forty years.

The passage of the USA Freedom Act is quite simply a vindication of Edward Snowden, and it’s not just civil libertarians who have noticed: he’s forced even some of the most establishment-friendly commentators to change their opinions of his actions. But it’s a shame that almost everyone nonetheless ignores the the oppressive law under which Snowden was charged or the US government’s outrageous position in his case: that if he were to stand trial, he could not tell the jury what his whistleblowing has accomplished.

The White House told reporters on Thursday that, despite the imminent passage of NSA reform, they still believe Edward Snowden still belongs in prison (presumably for life, given his potential charges), while at the same time, brazenly taking credit for the USA Freedom Act passing, saying that “historians” would consider it part of Obama’s “legacy.” Hopefully historians will also remember, as Ryan Lizza adeptly documented in the New Yorker, that Obama was handed every opportunity to reform the NSA before Edward Snowden, yet behind the scenes repeatedly refused to do so. 

Instead, the Obama administration was dragged kicking and screaming across the finish line by Snowden’s disclosures, all while engaging in fear-mongering that would make Dick Cheney proudSnowden is now the most influential whistleblower of his generation. Even his biggest detractors, the same people who once all but refused to utter his name, have recently had to concede his influence. Take, for example, this amusing article at the Huffington Post quoting various Senators across the political spectrum who were forced to begrudgingly admit that they wouldn’t even be having the debate over reforming the NSA’s surveillance practices if it wasn’t for Snowden. You can almost hear the contempt coming out of their mouths as you read their reactions.

Sadly, even those in Congress who were campaigning for stronger NSA reform than the bill that passed the Senate are afraid to directly credit Snowden and, in many cases, still condemn him. Some cling to the erroneous belief that Snowden should come back to the US if he’s really a whistleblower because he could “tell his story to a jury.” But since he was charged under the draconian Espionage Act – a World War I-era statute meant for spies, not leakers – Snowden would not even be able to utter the word “whistleblower” in court, let alone tell a jury why he did what he did. Pentagon Papers whistleblower Daniel Ellsberg explained in great detail how any evidence Snowden wanted to bring up to a judge would be ruled inadmissible, thanks to the incredibly restrictive way the Espionage Act is written.

And don’t kid yourselves when the White House talks about bringing Snowden to “justice”; his case has never been about “justice” when it comes to leaking government secrets to journalists. As US officials have shown repeatedly over the last year, they will happily leak classified details to newspapers more sensitive than what Snowden leaked if it means glorifying and defending their policies. Glenn Greenwald noted late last month that so many politicians and pundits in Washington DC seem to dislike Snowden not because what he leaked, but because he was able to shift the dominant narrative about national security away from the all-fear-all-the-time norm that so dominated in Washington for the last decade.

Establishment DC, by and large, still hates him because he has continued to not only participate, but thrive in the debate about US national security, despite being exiled from his home country. How he managed to do so is remarkable in itself: thanks to technology, Snowden can appear at Princeton one day and Sweden the next and comment on the day’s news and developments, instead of being gagged from speaking to the press like Chelsea Manning was while she was tortured, awaiting her court martial. Snowden is cracking jokes on Reddit instead of rotting in solitary confinement at a maximum security prison.

Without Edward Snowden, there would be no debate about the mass surveillance of Americans by the NSA. The Second Circuit Court of Appeals would not have ruled such surveillance illegal, tech companies would not encrypt our phone calls and text messages, and Congress certainly would not have passed the USA Freedom Act - no matter how meager its reforms actually are. Section 215 of the Patriot Act, which the NSA used to secretly vacuum up every American’s phone records, would have been renewed in a landslide with little fanfare – it always was in the past – and the American people would have been none the wiser.

But there also might have not been an Edward Snowden if it wasn’t for the whistleblowers who risked it all before him. Lost in the national discussion about Snowden’s leaks and NSA reforms has been the US government’s deplorable treatment of the NSA whistleblowers who came before Snowden: Thomas Drake,Bill BinneyJ Kirk WiebeDiane Roark and others. They were investigated, had their phones wiretapped, were pulled out of their houses at gunpoint, and in one case, was charged under the Espionage Act for internally protesting the NSA’s illegal and unconstitutional actions after 9/11. The USA Freedom Act vote was just as much vindication for those men and women whose lives were destroyed for telling the truth but who never became household names.

It is an ongoing travesty that the Espionage Act – a bill meant to punish spies who sell secrets to foreign governments – can be used in such a vindictive and draconian way against someone who wanted to hand the truth to the American people. Snowden told the Guardian two weeks ago that he saw the USA Freedom Act as the beginning and not the end of NSA reform. Hopefully Congress will one day soon also have the courage to give whistleblowers their normally-guaranteed right to defend themselves in court, and not send them to straight to jail or worse.