President Trump, who exhibits unrestrained contempt for proper authority, including his own, recently declared that he may soon grant a pardon for Edward Snowden, the former National Security Agency contractor who has lived in Moscow since 2013 after leaking information on the nation’s most secretive spy agencies. This would be the culmination of a years-long relationship that Trump and his entourage has cultivated with Snowden (and Julian Assange) since it became clear that these forces shared Trump’s unalloyed hostility for the American order and all its works.
The prospect of a presidential pardon for Snowden, whose revelations about the National Security Agency’s foreign and domestic surveillance techniques were disclosed at his personal whim rather than through democratic audit, is a befitting offering from a chief executive whose flagrant criminality and contempt for the democratic process will be his most enduring legacy.
The controversy over Snowden calls to mind an episode from revolutionary America in which Alexander Hamilton laid down an important standard about the appropriate balance between justice and principle. In May 1775, when a nasty mob gathered at King’s College to tar and feather Myles Cooper, the college’s loyalist president, Hamilton interceded to lecture the crowd on the disgrace such unwarranted violence would bring “on the cause of liberty.” Thanks to this effort to hold the agitated crowd at bay, Cooper was able to escape to the safety of a British warship, but Hamilton was nonetheless shaken by the experience. He wrote to John Jay soon afterwards, “I am always more or less alarmed at every thing which is done of mere will and pleasure, without any proper authority.”
It seems never to have occurred to Snowden that his shabby conscience does not and never did constitute a proper authority. He abrogated to himself the responsibilities of governance under the dubious ruse of exposing unconstitutional methods, and his media allies assumed the same responsibilities under the equally dubious ruse of investigative journalism. It has been widely suggested that Snowden’s stolen secrets—and his unscrupulous acolytes in media who have lustily distributed them on multiple continents—represent a valiant defense of individual liberties against mighty and minatory states. This narrative could not be further from the truth.
The apologists for and beneficiaries of Vladimir Putin’s regime have suggested that Americans’ civil liberties are held in contempt by their own government. And yet it is the United States government that has seen fit to obtain such a sturdy legal footing before venturing to gather user information from Verizon and other private companies that so offended Snowden’s delicate sensibilities. Far from being a violation of the Fourth Amendment guarantee against unreasonable searches and seizures, the collection of sensitive information by the NSA—expressly permitted by Congress and extensively reviewed by the Foreign Intelligence Surveillance Court—has been fully consistent with longstanding judicial precedent.
In United States v. Choate, for instance, the courts decided that the Postal Service may record “mail cover,” i.e., what’s written on the outside of an envelope—the addresses of sender and receiver. As Charles Krauthammer argued at the time of Snowden’s revelations, the NSA’s recording of U.S. phone data merely extends the logic of this ruling to telephone records. The program is not a mass, roving tap, as it has been widely characterized, because it only records the numbers dialed and time stamps—“the outside of the envelope, as it were. The content of the conversation, however, is like the letter inside the envelope. It may not be opened without a court order.”
In Smith v. Maryland, the Supreme Court addressed this method of surveillance more directly. It held that the warrantless state installation of a pen register that collected telephone information, known as metadata, could not be construed as an unreasonable search by the standards of the Fourth Amendment. This was decided on the grounds that people have no expectation of privacy in records that plainly belong to another party.
Once the case of government trampling civil liberties is demonstrated to be an obnoxious fiction, the critics tend to fall back on challenging the notion that its surveillance measures even foil the country’s enemies. After all, we are knowingly assured, the enemy already understood the danger of placing calls. This argument has gained a surprising amount of traction given the obvious flaw in its reasoning. A moment’s thought should tell us that if we, an informed citizenry, didn’t know about the details of such operations, our enemies probably didn’t know either.
This argument calls to mind the deceitful habit cultivated by detractors of America’s post-September 11 regime of enhanced interrogation. They frequently insisted that “torture” was not merely immoral; it was ineffective. At times it seemed as if they could not mount a case against it if it were proven to yield benefits to American security. The suggestion that Snowden ever exposed wrongdoing is at least tenable, if not compelling. What strains credulity is that his imprudent action has not done real harm to American security. The ability to hinder terrorists’ communications is a vital American advantage in a war where the asymmetric benefits so often reside on the other side.
At this point one simply has to reiterate the initial questions: To justify Snowden’s wanton disregard for democratic procedure, what laws were ever shown to have been broken? What liberties were violated? This is what Snowden’s defenders—or, if you like, defenders of the act of bringing these classified materials to light—have never adequately explained. Indeed, this is what they have doggedly refused to answer. And for good reason. In the vast labyrinth of the American security state, there are numerous possibilities of illegal activity being brought to light.
And yet even at this late date, not a shred of evidence has been produced suggesting chronic abuse, let alone law-breaking, by the NSA. Even if there were such evidence, there is an established and credible process in place to reform government intelligence gathering techniques without arbitrarily leaking classified information—a process that Snowden shows no sign of having availed himself.
Anyone who recalls this sordid affair will not fail to notice the cavalier contempt for authority that propelled Snowden to splash his ill-gotten goods onto the world stage has been replicated every day of the Trump administration. (At least once, this happened literally, when Trump disclosed high-level U.S. secrets to the Russian foreign minister in the Oval Office.) It is this exercise in “mere will and pleasure” that most urgently needs to be ruled out of court—the court of public opinion. If the president decides to grant him a pardon anyway, in open defiance of the spirit of his executive authority, it will not be the least of reasons for the American public to turn him out of office this November.