Edward Snowden has taken the law into his own hands, supposedly for a higher cause. Has American political life has collapsed enough to make this necessary?
One of the more negative aspects of political life is the relentless drive towards dividing the world into what Carl Schmidt called “friends and enemies”. Such division, often appropriating for itself the characterization of political realism, suggests that attempts at finding a common good are flights of romantic idealism. The modern mass media metastasize this constant degenerative danger inherent in political life because conflict, not dialogue, sells. It is as if the Socratic dialogues—where participants engaged in robust dispute without resorting to persecution—were but a fable. Given at least one version of the Apology, perhaps the ultimate degeneration of political life into friends and enemies is inevitable. Still, let us attempt, precisely when partisan passion is at its crescendo, to rise above the degeneration and inquire dispassionately into the important matter of Edward Snowden.
Assuming Mr. Snowden is not simply a spy for a rival power, but an authentic citizen concerned with abuse of power and usurpation of rights, he has already learned the hard way about friends and enemies. The Chinese and Russian regimes are certainly comparatively freer and better places than a few decades ago. Yet they are no greater sanctuaries of human rights than the United States. If anything, the kind of government surveillance and secrecy that Edward Snowden protests against in America has been the norm in Russia and China for years. No PATRIOT Act was necessary to trigger it, as neither regime ever had much of a limited constitutional government to subvert in the first place. Cuba, which appears poised as another possible temporary sanctuary for Mr. Snowden, is also not the greatest champion of human rights—though it too, in fairness, has made strides in the direction of freedom recently. The point, however, is that in trying to disassociate himself from American government, Mr. Snowden cannot help but to associate with governments whose records on civil rights are possibly as bad if not worse than America’s.
By no means does this imply guilt by association. Rather, it suggests that Mr. Snowden may become a useful prop for nation-states seeking to undermine American policy. In politics, it is very difficult to announce an enemy without making unwanted friends. In the case of Mr. Snowden, these friends who routinely monitor the emails of their citizens (in the case of China and Russia) blunt any moral point he may have been hoping to make about privacy rights as a whistleblower. The more Mr. Snowden relies on these new friends for protection against American prosecutors, the more he will risk tarnishing his reputation. After all, if he is so morally opposed to American surveillance practices, will he also speak out against similar practices in Russia and China? Since he will not, then we may fairly ask why his indignation is not universal, but rather directed only at America? Why is it morally proper to accept even passive assistance from foreign countries who practice the very internet surveillance Mr. Snowden faults America for?
Some may say that this is an exceedingly high standard of morality. What else, Mr. Snowden’s apologists might contend, could he have done? Where else could he go? One possibility would have been to resign in protest, seek legal counsel and perhaps even seek political support within the United States. By fleeing, Mr. Snowden is effectively communicating not only that his country’s National Security system is criminal, but also that his nation’s legal system is unreliable. He is, effectively, making a very negative statement about the rule of law in America. As such, he necessarily risks antagonizing not only potential sympathizers in the national security establishment, but in the legal establishment as well. He is communicating to the world that China and Russia now have greater legal protections for free speech, internet privacy and the rule of law than America. Is this really true?
Perhaps; perhaps not. The days of the Cold War are over, and only a few insignificant regimes exist which still cling to truly totalitarian practices. The rest of the world—China, Russia and America with them—are all in a muddled area. Globalization has universalized certain practices, some good, some bad. Most are not extreme and are hard to categorize as giving any one particular country the moral high ground. As a matter of fact Edward Snowden’s revelations, much like Wikileaks, are actually not all that shocking. Was anyone in doubt that the American government was monitoring emails and telephone calls, or at least had the legal right to access such records from private entities after fulfilling certain procedural formalities? Wasn’t this made explicit at least ever since the PATRIOT act was passed and signed into law? Didn’t opponents to the law make this explicit?
One can of course make the case that this law must be repealed or scaled back, and certainly a change in American foreign policy from a desire to remake the world in the image of Kansas to one prioritizing the proverbial defense of Kansas, would facilitate such change. Imperial tools are easily removed when imperial foreign policy is removed in favor of republicanism. The notion that it is possible to maintain high levels of military and intelligence operations throughout the world and ensure transparency is dangerously absurd. It is dangerous because secrecy is an obvious prerequisite to military success; it is absurd because in our democratic dementia we sometimes misunderstand the nature of government and politics, applying rather silly and unprofessional standards to it, like demanding “transparency” from offices the explicit purpose of which is secrecy.
Both Presidents Washington and Eisenhower, arguing against an over-extended, imperialistic foreign policy in their farewell addresses, did so on the basis of a realistic view of government. Both understood that the particular character of republican institutions could not be sustained by what Washington called “foreign intrigue”, nor by excessive influence of that faction Eisenhower identified as the “military industrial complex.” Yet both men also understood that, as Washington put it, such policy ought “not be understood as capable of patronizing infidelity to existing engagements.” Certainly President Eisenhower did not misunderstand it. Nor, it must be admitted, did President Obama when fulfilling existing engagements, negotiated by his predecessor, according to which American troops were to leave Iraq.
Why did President Washington, in the midst of an otherwise forceful case for a policy of neutrality towards the raging European war and against entangling alliances as such, take care to speak that one sentence lest he be misunderstood as announcing a wholesale cancellation of America’s existing engagements? It is clear he recognized that in a republic, a balance must be struck between a constant openness to the possibility of altering foreign policy and the equal necessity for maintaining a stable foreign policy as a guarantor of credibility on the world stage. This delicate task is a particularly republican task. A tyrant can compel the maintenance of a steady policy; a republic will theoretically find itself capable of radical changes in policy every time there is a major election. Yet if this republic is to have any standing in the world, such changes must be gradual and measured—something not very appealing as election rhetoric, but as necessary and beneficial as government action.
Mr. Snowden, like many Americans, apparently felt great concern over the extent of government intrusion into private life facilitated by the PATRIOT act. Sadly, he decided to act outside of the law, in a manner reminiscent of Wikileaks, which insist that “existing engagements” as Washington called them, are immaterial. One important facet of the maintenance of credibility in such engagements is secrecy. Secrecy in government, like war itself, may attack our moral sentiments, but if we think for a moment, we will realize its broader ethical justification. Need we explain the moral validity of the maintenance of secrecy in voting, or in negotiating business? Do citizens who serve as public figures suddenly lose the right to secrecy when they enter public life? Did Mr. Nixon really have no right to keep his own counsel? Shall we transform the Presidency and the diplomatic corps into a reality TV program to satisfy public gossip?
The charge that government can abuse secrecy under the pretext of national security is legitimate, but the remedy is not to compel transparency at the cost of the real benefits to be had from secret council amongst officers of the government. Instead, we should change policy so as to disengage government from imperial practices that risk the exploitation of growing power and secret council. Some might recoil at the notion that secrecy has any place in government, but serious reflection should dispel any doubts.
It is characteristic of democratic, public debate that participants engage in rhetoric in view of their audience. We all recognize this tendency in most social settings. To conduct all the business of government in this open and transparent way would be as ineffective as conducting any business in similar manner. We can all appreciate the value of friends who keep their counsel, and anyone who has held a position of responsibility in any institution, public or private, understands that they ought to keep their counsel even when they part company with said institution. The same mechanism applies in political life. The matter is complicated due to the often conflicting political priorities of the “is” and the “ought,” and in particular by the added difficulty of disagreement amongst democratic partisans over what the “ought” is.
Finally, Edward Snowden, like Julian Assange before him, has taken the law into his own hands. Supposedly, he has done so for a higher cause. One wonders whether American political life has collapsed to such lows as to really make it necessary? If Mr. Snowden can be justified, why can others not? Will those who view Mr. Snowden as a hero support general mutiny amongst soldiers, police officers and the like? Should doctors, construction workers and the like go on strike, break all laws and public ordinances they find in violation of morality? Should we stop paying taxes? Would all conscientious lawbreakers be justified if Mr. Snowden is justified? What are the acceptable limits of civil disobedience in democratic society? Does it tell us something about patriotism that those who practiced civil disobedience alongside Martin Luther King, Jr. did not flee the country but accepted prison to satisfy the high calling of their consciences?
These are all very hard questions. Perhaps a good starting point towards an answer is the recognition that where we still have free elections, we still have an obligation to abide by their results and a right to vehemently disagree with them. The right comes in natural conjunction with the obligation. Just as the obligation to abide by laws we disagree with does not cancel out our right to disagree, so too our right to disagree cannot cancel out our obligation to abide by the law in a liberal democracy. If it does—if we say “my right to disagree leads to my right to ignore the law—all in the name of higher morality”—then we introduce a sort of inverse Kantian categorical imperative towards mob rule. Everyone will then, at their discretion, decide when and when not to follow the law. That kind of disintegration of fidelity towards law amongst the people will destroy the constitutional republic we have far quicker than bad government ever could. Lincoln taught us as much in his brilliant Lyceum address.
It is true that a greater tendency to violate laws grows when laws are long, complex, proliferate and invasive; but, restraint must somewhere be exercised, prudent judgements somewhere be made. Edward Snowden, as of this writing sitting in Moscow with a bag full of classified American intelligence, under the verbal protection of once KGB-man Vladimir Putin, may have acted rather imprudently. Is he hero or traitor? Either way, he is certainly tragic.
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