Congress moved with crisis-driven speed after 9/11 to enact a law, the USA Patriot Act, to give the government new powers to detect, apprehend, and prosecute would-be terrorists. Among its provisions, section 215 authorized the FBI to seek a court order for the production of “any tangible things (including books, records, papers, documents, and other items” if related to “an investigation to protect against international terrorism or clandestine intelligence activities.”
A few members of Congress along with some civil liberties groups raised concerns about the open-ended investigatory power and the relaxed standard for using the power. In all the debate at the time, however, no one warned that section 215 would allow the government to vacuum up the records of Americans’ telephone calls — numbers called, dates and times of calls — on an ongoing basis with no individualized suspicion whatsoever.
Belatedly, we now know thanks to the whistleblowing ex-government contractor Edward Snowden that the supersecret National Security Agency (NSA) has been doing exactly that for more than a decade. Snowden’s disclosures have touched off a raging debate over, among other issues, the legality of the telephone records program.
Much of the legal debate has focused on the constitutionality of the program, but opponents of the program run into a Supreme Court precedent, Smith v. Maryland (1979). In Smith, the Supreme Court upheld on a 5-3 vote the installation of a “pen register” at a telephone company to record the telephone numbers dialed from a drug suspect’s phone. “No search,” the majority held, because Smith was deemed to have voluntarily disclosed the information to the phone company.
In his opinion for the majority, Justice Harry A. Blackmun noted what he called “the limited capabilities” of the pen register. Surely, he and the other justices at that time would be astonished to learn that technology now allows the phone company to collect and turn over to the government not just Smith’s telephone records, but everybody’s — covering extended periods and on an ongoing basis.
Following Smith’s holding, the NSA’s telephone records program is no search either — and thus untouched by the Fourth Amendment’s prohibition against “unreasonable” searches. Despite the raging debate, only one of more than a dozen judges to consider the issue — Judge Richard Leon of the U.S. District Court in Washington, D.C. — has ruled that the program runs afoul of the Fourth Amendment.
An antecedent argument has drawn less attention: whether the Patriot Act’s section 215 authorizes the mass collection of so-called telephony metadata at all. And in a thorough report issued last week [Jan. 23], the newly established Privacy and Civil Liberties Oversight Board concluded that it does not.
Following the mantra of the Supreme Court’s strict statutory constructionists, the 3-2 majority on the bipartisan board followed section 215’s plain text and found four reasons why it does not authorize what the NSA is doing (see p. 10). First, the board notes, “the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection.” Second, records collected in bulk cannot be regarded as “relevant” to any investigation unless the word is redefined to be “circular” and “unlimited in scope.”
As a third objection, the board says the phone companies’ ongoing provision of call records to the government on a daily basis has no foundation in the statute. And, fourth, the statute authorizes only the FBI to obtain the records; the NSA is nowhere mentioned.
The three Democrats on the board — including a former federal appeals court judge, Patricia Wald — found unpersuasive the argument that Congress has sanctioned the program by reauthorizing section 215 twice after being informed of its operation. In separate statements, the two Republicans on the board — former Bush Justice Department officials Rachel Brand and Elisebeth Collins Cook — voted to continue the program despite what they called the “difficult” statutory issue. But they joined the majority in calling at least for some changes — notably, retaining phone records for three instead of five years and limiting somewhat the scope of searches of the call records.
The board split along partisan lines as well on the value of the program. The majority said it found no single instance in which the program made “a concrete difference in the outcome of an investigation” or “a direct contribution to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” Cook agreed the government had not demonstrated the value of the program, while Brand argued that the program was valuable because the telephone records were immediately available to investigators if needed.
That debate parallels the ongoing argument among experts on advocates about whether the NSA program could have prevented 9/11 if it had been in operation at the time. The best answer to that question appears to be that intelligence agencies would still have missed the clues and policymakers would have ignored the warnings anyway.
In defending the program, President Obama has minimized any risks to privacy: nobody is actually listening to those telephone calls, he stresses. The people he picked for the privacy board are not reassured. The former constitutional law teacher also bats away the Fourth Amendment concerns about the program. Apart from those policy questions, however, the privacy board makes a persuasive case that Congress never authorized this program at all.
Sunday, January 26, 2014
Sunday, January 19, 2014
Striking a Free-Speech Balance at Abortion Clinics
When John Roberts looks into a mirror, he sees the reflection of a chief justice with a solid record of supporting freedom of speech. If he dwells on the subject, he may even congratulate himself for his decision three years ago supporting the rights of hate-filled religious fundamentalists to spew anti-gay venom at the funeral of a fallen military service member.
Roberts may well have been recalling that decision as he sat during the hour-long arguments last week in the court’s latest free-speech case. In the new case, McCullen v. Coakley, self-styled anti-abortion “counselors” are challenging a Massachusetts law establishing a 35-foot “buffer zone” around abortion clinics.
The plaintiffs say the 2007 law prevents them from engaging in constitutionally protected speech in a public setting to try to dissuade women from having an abortion. The state counters that the law is needed to protect abortion clinics, their employees, and their patients from congestion, disruption, harassment, intimidation, and even potential violence.
Roberts, normally an active questioner from the bench, was uncustomarily silent for the entire hour of the oral argument in the Massachusetts case [Jan. 19]. But the consensus among the Supreme Court press corps and other Court watchers is that Roberts is likely to join his four conservative colleagues in striking down the Massachusetts law as going too far in limiting the free-speech rights of abortion opponents.
Those predictions may prove to be right. Eleanor McCullen, the earnest but soft-spoken 77-year-old grandmother chosen as the first named plaintiff, is an appealing candidate for First Amendment protections. And the state’s arguments for a buffer zone larger than the Supreme Court had allowed in its most recent similar case were somewhat shaky.
Roberts may have been keeping his thoughts to himself, however, to steer the court toward a compromise position that protects free-speech rights on one side and women’s rights to access to abortion on the other. That would be a sensible resolution of the case consistent with the court’s precedents that in this and other contexts recognize the need to draw lines that free speech may not cross.
In three earlier cases, the court has upheld buffer zones in abortion-clinic cases despite vigorous dissents from three conservatives: Scalia, Kennedy, and Thomas. In Madsen v. Women’s Health Center (1994), the court upheld a lower court injunction establishing a 36-foot buffer zone at an abortion clinic in Melbourne, Florida. Three years later, the court in Schenck v. Pro-Choice Network of Western New York (1997) upheld a lower court’s injunction creating 15-foot buffer zones around abortion clinics in Buffalo and Rochester. But the court in that case threw out part of the injunction imposing an eight-foot “floating buffer zone” protecting clinic employees and patients as they entered or left the facilities.
In the most recent case, Hill v. Colorado (2000), the court shifted its stance slightly by upholding a Colorado law that established an eight-foot buffer zone for abortion clinics across the board. Anti-abortion protesters were required to stay eight feet away from clinic employees or patients unless they agreed to listen. For the majority, Stevens reasoned that a generally applicable state law avoided the risk of uneven enforcement of buffer zones through court injunctions.
Chief Justice Rehnquist wrote the two earlier decisions and joined in the third; O’Connor was also in the majority in all three. But their successors — Roberts and Alito — came to the court with records of having opposed abortion rights before taking the bench.
Massachusetts tried the floating bubble approach upheld in Hill, but police said it was problematic to enforce. So the state legislature responded in 2007 by mandating the fixed, 35-foot buffer zone. In oral argument, the justices and the lawyers proved to have a poor sense of distance: Kagan wrongly suggested 35 feet was about the length of the courtroom (56 feet actually), while the government’s lawyer equated it with the distance of basketball’s three-point arc (23 feet, 9 inches, in the NBA).
Despite the confusion, Scalia and other conservatives were correct in stressing that the 35-foot buffer prevents the abortion opponents from any interaction with patients once inside the zone. By contrast, Michael Rienzi, the Catholic University law professor representing the plaintiffs, emphasized that the “floating bubble” or what he called the “no approach” requirement at least gives demonstrators a chance to converse if the patients agree.
For the state, assistant attorney general Jennifer Grace Miller said the 35-foot buffer zone was needed to prevent anti-abortion forces from blocking access to the clinics. But she embarrassingly said another rationale was to prevent shoving and shouting matches between abortion-rights advocates themselves and the anti-abortion forces.
The court’s precedents show, however, that speech-free zones are permissible in some circumstances. The court has upheld laws prohibiting electioneering within specified distances of polling places. The court itself is protected by a law that bars demonstrations on the plaza in front of the Supreme Court building. And in the military funeral case, Snyder v. Phelps (2011), Roberts suggested that laws creating buffer zones for such services might pass constitutional muster.
On the plaza after arguments, McCullen said it was “frustrating” for her to be prevented from trying to dissuade women from abortions. On the other side, however, are the unseen women already struggling with a painful decision who equally deserve effective protection of their constitutional rights.
Roberts may well have been recalling that decision as he sat during the hour-long arguments last week in the court’s latest free-speech case. In the new case, McCullen v. Coakley, self-styled anti-abortion “counselors” are challenging a Massachusetts law establishing a 35-foot “buffer zone” around abortion clinics.
The plaintiffs say the 2007 law prevents them from engaging in constitutionally protected speech in a public setting to try to dissuade women from having an abortion. The state counters that the law is needed to protect abortion clinics, their employees, and their patients from congestion, disruption, harassment, intimidation, and even potential violence.
Roberts, normally an active questioner from the bench, was uncustomarily silent for the entire hour of the oral argument in the Massachusetts case [Jan. 19]. But the consensus among the Supreme Court press corps and other Court watchers is that Roberts is likely to join his four conservative colleagues in striking down the Massachusetts law as going too far in limiting the free-speech rights of abortion opponents.
Those predictions may prove to be right. Eleanor McCullen, the earnest but soft-spoken 77-year-old grandmother chosen as the first named plaintiff, is an appealing candidate for First Amendment protections. And the state’s arguments for a buffer zone larger than the Supreme Court had allowed in its most recent similar case were somewhat shaky.
Roberts may have been keeping his thoughts to himself, however, to steer the court toward a compromise position that protects free-speech rights on one side and women’s rights to access to abortion on the other. That would be a sensible resolution of the case consistent with the court’s precedents that in this and other contexts recognize the need to draw lines that free speech may not cross.
In three earlier cases, the court has upheld buffer zones in abortion-clinic cases despite vigorous dissents from three conservatives: Scalia, Kennedy, and Thomas. In Madsen v. Women’s Health Center (1994), the court upheld a lower court injunction establishing a 36-foot buffer zone at an abortion clinic in Melbourne, Florida. Three years later, the court in Schenck v. Pro-Choice Network of Western New York (1997) upheld a lower court’s injunction creating 15-foot buffer zones around abortion clinics in Buffalo and Rochester. But the court in that case threw out part of the injunction imposing an eight-foot “floating buffer zone” protecting clinic employees and patients as they entered or left the facilities.
In the most recent case, Hill v. Colorado (2000), the court shifted its stance slightly by upholding a Colorado law that established an eight-foot buffer zone for abortion clinics across the board. Anti-abortion protesters were required to stay eight feet away from clinic employees or patients unless they agreed to listen. For the majority, Stevens reasoned that a generally applicable state law avoided the risk of uneven enforcement of buffer zones through court injunctions.
Chief Justice Rehnquist wrote the two earlier decisions and joined in the third; O’Connor was also in the majority in all three. But their successors — Roberts and Alito — came to the court with records of having opposed abortion rights before taking the bench.
Massachusetts tried the floating bubble approach upheld in Hill, but police said it was problematic to enforce. So the state legislature responded in 2007 by mandating the fixed, 35-foot buffer zone. In oral argument, the justices and the lawyers proved to have a poor sense of distance: Kagan wrongly suggested 35 feet was about the length of the courtroom (56 feet actually), while the government’s lawyer equated it with the distance of basketball’s three-point arc (23 feet, 9 inches, in the NBA).
Despite the confusion, Scalia and other conservatives were correct in stressing that the 35-foot buffer prevents the abortion opponents from any interaction with patients once inside the zone. By contrast, Michael Rienzi, the Catholic University law professor representing the plaintiffs, emphasized that the “floating bubble” or what he called the “no approach” requirement at least gives demonstrators a chance to converse if the patients agree.
For the state, assistant attorney general Jennifer Grace Miller said the 35-foot buffer zone was needed to prevent anti-abortion forces from blocking access to the clinics. But she embarrassingly said another rationale was to prevent shoving and shouting matches between abortion-rights advocates themselves and the anti-abortion forces.
The court’s precedents show, however, that speech-free zones are permissible in some circumstances. The court has upheld laws prohibiting electioneering within specified distances of polling places. The court itself is protected by a law that bars demonstrations on the plaza in front of the Supreme Court building. And in the military funeral case, Snyder v. Phelps (2011), Roberts suggested that laws creating buffer zones for such services might pass constitutional muster.
On the plaza after arguments, McCullen said it was “frustrating” for her to be prevented from trying to dissuade women from abortions. On the other side, however, are the unseen women already struggling with a painful decision who equally deserve effective protection of their constitutional rights.
Sunday, January 12, 2014
NFL Dodges a Bullet in Head-Injury Lawsuit
Frank Bruni apparently likes a good football game as much as the next guy, but the New York Times columnist was discomfited by the Indianapolis Colts’ come-from-behind victory over the Kansas City Chiefs in an early round in the National Football League (NFL) playoffs. Bruni was bothered not so much by the outcome as by the injuries to key Chiefs players that contributed to their loss.
In all, the Chiefs lost three players to concussions during the game: running back Jamaal Charles, wide receiver Donny Avery, and star cornerback Brandon Flowers. Bruni related the scene in his column [Jan. 7] as Flowers lay motionless just off the sidelines after his head had whipped into another player’s legs.
Disturbingly for Bruni, the broadcaster treated the succession of injuries in football instead of human terms: “a momentum-buster,” he called it. “What clumsy but telling words,” Bruni wrote. “That's the National Football League for you. Broken bodies matter mostly in terms of a broken rhythm.”
Professional football has been the United States’ most popular spectator sport since the 1960s. Tens of thousands of fans flock to mammoth stadiums around the country every Sunday, while millions of others watch in their living rooms or sports bars. The game is a money-maker for the league —
nearly $10 billion in annual revenue — and for the television networks that carry the game.
The NFL has maintained its popularity despite increasing evidence over the past two decades of the serious and long-lasting injuries that the game inflicts on the young men who play it. “Football is hazardous to your health,” Dave Pear, a six-season defensive lineman (1976-1981), told me for my report for CQ Researcher in advance of Super Bowl XLIV (Jan. 29, 2010).
Pear is paying for six years of pro football by living with constant pain from injuries to his neck and back. Many other retired players are suffering with worse: dementia brought on by concussive impacts sustained to their heads week after week. For a few, the pain and loss of mental capacity have proved so unbearable as to lead to suicide — for example, former All-Pro linebacker Junior Seau, who shot himself on Jan. 20, 2012. An autopsy showed that Seau suffered from brain disease – chronic traumatic encephalopathy (CTE), in medical terms.
For years, the NFL game plan was to deny the connection, but the law finally threatened to catch up with the league. Two groups of retired players filed related class actions against the league in July 2011, seeking compensation for deaths and brain-related diseases they suffered from injuries sustained during their gridiron years. Two years later, attorneys for the plaintiffs reached a tentative settlement with the NFL, which was detailed in more than 350 pages of legal documents filed in federal court in Philadelphia last week [Jan. 6].
At first glance, the league appears finally to be paying for what the game does to players. The settlement calls for $765 million in compensation for retired players, with maximum payments of up to $4 million for players who died from brain disease injuries and seven-figure compensation for players with dementia or Parkinson’s or Alzheimer’s disease.
That seems like a lot of money, but on closer examination it is clear that the NFL will come out of this case with its finances intact and its reputation largely saved if the settlement is approved as expected. Compensation levels are reduced for older players: a maximum of $580,000, for example, for a player diagnosed with severe dementia in his early 60s. (Details can be seen in the documents that are linked in a column by ESPN legal analyst Lester Munson: see Exhibit A.) And the compensation is paid out over a 20-year period. The present-day value of the compensation package — using conservative discounting — is around $500 million, a pittance for a $10 billion industry.
Some of the retired players are balking at the amounts and could decide to opt out of the class action. If enough do so, the settlement might unravel. It seems more likely, however, that the settlement will stand. Judge Anita Brody, who has been eager for a settlement, is likely to approve the settlement following a fairness hearing. And retired players who qualify are likely to see the advantages of taking assured compensation now, with no need to prove causation, rather than taking their chances on protracted litigation in court.
For NFL executives and owners, the settlement offers the chance to put this issue behind them. The lawsuit charges that the NFL failed to protect players from the chronic risks of head injuries and concealed those risks, but the settlement will end the case with no admission of liability or misconduct from the league. “The NFL will not be opening its books,” NPR’s Mike Pesca remarked on the PBS NewsHour (Jan. 10).
The NFL has adopted a stricter protocol for head injuries, keeping players from returning to the field after concussions. But, as Bruni wrote, the league could do more to protect players: better equipment, better training, fewer games, and perhaps even weight limits for players. The occupational hazards appear, however, to be no deterrent to the steady flow of would-be recruits in the NFL draft each year and no great concern for the fans who watch and cheer with each body-crushing tackle every Sunday.
In all, the Chiefs lost three players to concussions during the game: running back Jamaal Charles, wide receiver Donny Avery, and star cornerback Brandon Flowers. Bruni related the scene in his column [Jan. 7] as Flowers lay motionless just off the sidelines after his head had whipped into another player’s legs.
Disturbingly for Bruni, the broadcaster treated the succession of injuries in football instead of human terms: “a momentum-buster,” he called it. “What clumsy but telling words,” Bruni wrote. “That's the National Football League for you. Broken bodies matter mostly in terms of a broken rhythm.”
Professional football has been the United States’ most popular spectator sport since the 1960s. Tens of thousands of fans flock to mammoth stadiums around the country every Sunday, while millions of others watch in their living rooms or sports bars. The game is a money-maker for the league —
nearly $10 billion in annual revenue — and for the television networks that carry the game.
The NFL has maintained its popularity despite increasing evidence over the past two decades of the serious and long-lasting injuries that the game inflicts on the young men who play it. “Football is hazardous to your health,” Dave Pear, a six-season defensive lineman (1976-1981), told me for my report for CQ Researcher in advance of Super Bowl XLIV (Jan. 29, 2010).
Pear is paying for six years of pro football by living with constant pain from injuries to his neck and back. Many other retired players are suffering with worse: dementia brought on by concussive impacts sustained to their heads week after week. For a few, the pain and loss of mental capacity have proved so unbearable as to lead to suicide — for example, former All-Pro linebacker Junior Seau, who shot himself on Jan. 20, 2012. An autopsy showed that Seau suffered from brain disease – chronic traumatic encephalopathy (CTE), in medical terms.
For years, the NFL game plan was to deny the connection, but the law finally threatened to catch up with the league. Two groups of retired players filed related class actions against the league in July 2011, seeking compensation for deaths and brain-related diseases they suffered from injuries sustained during their gridiron years. Two years later, attorneys for the plaintiffs reached a tentative settlement with the NFL, which was detailed in more than 350 pages of legal documents filed in federal court in Philadelphia last week [Jan. 6].
At first glance, the league appears finally to be paying for what the game does to players. The settlement calls for $765 million in compensation for retired players, with maximum payments of up to $4 million for players who died from brain disease injuries and seven-figure compensation for players with dementia or Parkinson’s or Alzheimer’s disease.
That seems like a lot of money, but on closer examination it is clear that the NFL will come out of this case with its finances intact and its reputation largely saved if the settlement is approved as expected. Compensation levels are reduced for older players: a maximum of $580,000, for example, for a player diagnosed with severe dementia in his early 60s. (Details can be seen in the documents that are linked in a column by ESPN legal analyst Lester Munson: see Exhibit A.) And the compensation is paid out over a 20-year period. The present-day value of the compensation package — using conservative discounting — is around $500 million, a pittance for a $10 billion industry.
Some of the retired players are balking at the amounts and could decide to opt out of the class action. If enough do so, the settlement might unravel. It seems more likely, however, that the settlement will stand. Judge Anita Brody, who has been eager for a settlement, is likely to approve the settlement following a fairness hearing. And retired players who qualify are likely to see the advantages of taking assured compensation now, with no need to prove causation, rather than taking their chances on protracted litigation in court.
For NFL executives and owners, the settlement offers the chance to put this issue behind them. The lawsuit charges that the NFL failed to protect players from the chronic risks of head injuries and concealed those risks, but the settlement will end the case with no admission of liability or misconduct from the league. “The NFL will not be opening its books,” NPR’s Mike Pesca remarked on the PBS NewsHour (Jan. 10).
The NFL has adopted a stricter protocol for head injuries, keeping players from returning to the field after concussions. But, as Bruni wrote, the league could do more to protect players: better equipment, better training, fewer games, and perhaps even weight limits for players. The occupational hazards appear, however, to be no deterrent to the steady flow of would-be recruits in the NFL draft each year and no great concern for the fans who watch and cheer with each body-crushing tackle every Sunday.
Sunday, January 5, 2014
In Interest of Justice, Clemency for Edward Snowden
Developing story: The National Security Agency (NSA) is hard at work on a so-called quantum computer that could break nearly every kind of encryption used to protect digitized personal, business, and government records around the world.
That’s how the Washington Post reported the news in a front-page story last week [Jan. 3], based not on an NSA press release — as if there were such a thing — but on documents provided by the NSA’s wayward former contractor, Edward Snowden.
The $79.7 million research program could have “revolutionary implications” for the NSA’s intelligence gathering, the Post reported – not to mention the effects on privacy-protecting efforts of 21st century individuals, businesses, and governments. But the classified program was all hush-hush, except for speculation among physicists and computer scientists, until the Post’s Steven Rich and Barton Gellman mined some details from documents leaked by Snowden.
Snowden, now in a sort of exile in Russia, has been a divisive figure ever since he unmasked himself as the source for stories in the British newspaper The Guardian and the Post on the NSA’s vacuuming up of bulk telephone records. The government has charged him with espionage, and some national security hawks call him a traitor. But many critics of broad government surveillance view him as a whistleblower, hero, and patriot.
The debate over Snowden has intensified since an NSA official suggested and the New York Times editorially endorsed the idea of granting him some sort of amnesty or clemency. The idea seems destined to go nowhere, at least not anytime soon, but Snowden’s contribution to understanding and debating the government’s overly broad surveillance programs warrants something other than long prison time or lifetime banishment.
As the Times reported in a news story [Jan. 4], Richard Ledgett, head of an NSA task force assessing the damage from Snowden’s disclosures, floated the idea of a deal — amnesty for “assurances” against any more revelations — in an interview aired on the CBS program 60 Minutes [Dec. 15]. “My personal view is, yes, it’s worth having a conversation about,” said Ledgett, who is in line to become the secret agency’s second-in-command.
The Times forcefully advocated clemency or a plea bargain in a long editorial [Jan. 2] that editorial page editor Andrew Rosenthal said had been in the making for weeks. The Times editorial listed “substantially reduced punishment” as one possible outcome for Snowden. Still, Rosenthal conceded to the
Times’s public editor Margaret Sullivan that the newspaper’s stance might be “beyond what is realistic.”
Reaction over the next few days confirmed Rosenthal’s assessment. Even some critics of the intelligence establishment disagreed. Fred Kaplan, who writes on foreign policy for Slate, opened a long column [Jan. 3] by criticizing the government’s surveillance program but argued against amnesty for Snowden because of his disclosure of other, legitimate intelligence-gathering activities.
Richard Clarke, the former White House counterterrorism adviser best known for his criticism of the government’s pre-9/11 failures on al Qaeda, also came down against amnesty for Snowden. “In any outcome here, he’s going to serve time,” Clarke, currently one of five members of a White House-appointed task force reviewing the surveillance program, told the Times’s White House correspondent Peter Baker.
Baker said two other members of the group also voiced opposition to amnesty for Snowden, including Geoffrey Stone, a professor at the University of Chicago Law School and longtime critic of government secrecy. ‘“Even if Snowden’s benefit outweighed his costs, you don’t want to encourage people to make this decision for themselves,” Stone said. As for the White House and Justice Department, Baker said Ledgett’s suggestion had been met with “stony opposition.”
In principle, the critics of any amnesty have a sound point, but principle often bows to reality in criminal justice. The NSA’s interest in cutting a deal with Snowden suggests that the agency sees a possible net gain in a plea bargain. And whatever the government’s interest, a just outcome in Snowden’s case must also take into account the real public benefit of his actions.
The NSA’s collection of telephone records raises profound issues of how best to serve both national security and individual liberty, but those issues received far too little attention from policymakers in Congress or the executive branch before Snowden’s disclosures. Only now has it been learned that the super-secret Foreign Intelligence Surveillance Court upbraided the NSA for some operations of the program. And only now has there been full, public litigation over the legality of the program and a quasi-independent executive branch review of possible changes.
Justice would not have been well served 40 years ago if the Pentagon Papers leaker Daniel Ellsberg had gone to prison. He was spared prison thanks to the illegal break-in at his psychiatrist’s office committed under President Richard M. Nixon, who himself was spared prison for political rather than legal reasons. In the decade since 9/11, there has been little accountability for executive branch officials and personnel for possible crimes in the so-called war on terror.
Edward Snowden is a flawed figure, to be sure, guilty of deception and self-aggrandizement. But the public benefits of his actions outweigh the proven harm to the government’s intelligence-gathering interests. Snowden may or may not want to return to the United States, but a deal that limits his possible punishment would serve the ends of justice.
That’s how the Washington Post reported the news in a front-page story last week [Jan. 3], based not on an NSA press release — as if there were such a thing — but on documents provided by the NSA’s wayward former contractor, Edward Snowden.
The $79.7 million research program could have “revolutionary implications” for the NSA’s intelligence gathering, the Post reported – not to mention the effects on privacy-protecting efforts of 21st century individuals, businesses, and governments. But the classified program was all hush-hush, except for speculation among physicists and computer scientists, until the Post’s Steven Rich and Barton Gellman mined some details from documents leaked by Snowden.
Snowden, now in a sort of exile in Russia, has been a divisive figure ever since he unmasked himself as the source for stories in the British newspaper The Guardian and the Post on the NSA’s vacuuming up of bulk telephone records. The government has charged him with espionage, and some national security hawks call him a traitor. But many critics of broad government surveillance view him as a whistleblower, hero, and patriot.
The debate over Snowden has intensified since an NSA official suggested and the New York Times editorially endorsed the idea of granting him some sort of amnesty or clemency. The idea seems destined to go nowhere, at least not anytime soon, but Snowden’s contribution to understanding and debating the government’s overly broad surveillance programs warrants something other than long prison time or lifetime banishment.
As the Times reported in a news story [Jan. 4], Richard Ledgett, head of an NSA task force assessing the damage from Snowden’s disclosures, floated the idea of a deal — amnesty for “assurances” against any more revelations — in an interview aired on the CBS program 60 Minutes [Dec. 15]. “My personal view is, yes, it’s worth having a conversation about,” said Ledgett, who is in line to become the secret agency’s second-in-command.
The Times forcefully advocated clemency or a plea bargain in a long editorial [Jan. 2] that editorial page editor Andrew Rosenthal said had been in the making for weeks. The Times editorial listed “substantially reduced punishment” as one possible outcome for Snowden. Still, Rosenthal conceded to the
Times’s public editor Margaret Sullivan that the newspaper’s stance might be “beyond what is realistic.”
Reaction over the next few days confirmed Rosenthal’s assessment. Even some critics of the intelligence establishment disagreed. Fred Kaplan, who writes on foreign policy for Slate, opened a long column [Jan. 3] by criticizing the government’s surveillance program but argued against amnesty for Snowden because of his disclosure of other, legitimate intelligence-gathering activities.
Richard Clarke, the former White House counterterrorism adviser best known for his criticism of the government’s pre-9/11 failures on al Qaeda, also came down against amnesty for Snowden. “In any outcome here, he’s going to serve time,” Clarke, currently one of five members of a White House-appointed task force reviewing the surveillance program, told the Times’s White House correspondent Peter Baker.
Baker said two other members of the group also voiced opposition to amnesty for Snowden, including Geoffrey Stone, a professor at the University of Chicago Law School and longtime critic of government secrecy. ‘“Even if Snowden’s benefit outweighed his costs, you don’t want to encourage people to make this decision for themselves,” Stone said. As for the White House and Justice Department, Baker said Ledgett’s suggestion had been met with “stony opposition.”
In principle, the critics of any amnesty have a sound point, but principle often bows to reality in criminal justice. The NSA’s interest in cutting a deal with Snowden suggests that the agency sees a possible net gain in a plea bargain. And whatever the government’s interest, a just outcome in Snowden’s case must also take into account the real public benefit of his actions.
The NSA’s collection of telephone records raises profound issues of how best to serve both national security and individual liberty, but those issues received far too little attention from policymakers in Congress or the executive branch before Snowden’s disclosures. Only now has it been learned that the super-secret Foreign Intelligence Surveillance Court upbraided the NSA for some operations of the program. And only now has there been full, public litigation over the legality of the program and a quasi-independent executive branch review of possible changes.
Justice would not have been well served 40 years ago if the Pentagon Papers leaker Daniel Ellsberg had gone to prison. He was spared prison thanks to the illegal break-in at his psychiatrist’s office committed under President Richard M. Nixon, who himself was spared prison for political rather than legal reasons. In the decade since 9/11, there has been little accountability for executive branch officials and personnel for possible crimes in the so-called war on terror.
Edward Snowden is a flawed figure, to be sure, guilty of deception and self-aggrandizement. But the public benefits of his actions outweigh the proven harm to the government’s intelligence-gathering interests. Snowden may or may not want to return to the United States, but a deal that limits his possible punishment would serve the ends of justice.