At the heart of the case of Edward Snowden, the NSA whistleblower who leaked a massive tranche of agency documents in 2013 and revealed the breathtaking scope of US government spying, there was always a fundamental absurdity. Snowden was hunted, pushed into exile, and forced to live knowing he could have SEAL Team Six kick down his door any moment and spirit him off to some clammy military prison, all for doing something that authorities and even the people going after him tacitly admitted was a vital public good.
Even as former president Barack Obama absurdly tried to throw Snowden in prison by prosecuting him as a spy, he publicly acknowledged that “in the absence of institutional requirements for regular debate … the danger of government overreach becomes more acute,” and that “this debate” — which Snowden had sparked with his leak — “will make us stronger.” He even put together a panel of national security luminaries and his own loyalists to review surveillance policy, which eventually recommended a range of limits to it.
“In our view, the current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty,” the panel wrote about the use of the Foreign Intelligence Surveillance Act’s (FISA) notorious Section 215, which Snowden revealed had been used to indiscriminately store Americans’ phone metadata in bulk.
Former director of national intelligence James Clapper similarly threw fire and brimstone at Snowden, charging he had caused “profound damage” and made the country “less safe and its people less secure.” And similarly, he also begrudgingly admitted that “some of the conversations this has generated, some of the debate, actually needed to happen,” and that his leak ultimately “forced some needed transparency.” (Clapper famously perjured himself in order to mislead the US public about the scope of government surveillance — a crime he, unlike Snowden, walked away from with no consequence).
The hits kept coming. In 2014, the New York Times editorial board urged clemency for Snowden. “When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government,” they wrote. Commentators like Washington Post columnist Richard Cohen and Fox News talking head Juan Williams changed their once-hostile attitudes toward the whistleblower, saying things like: “his actions forced Congress to take responsibility.”
Over the course of 2014–15, Congress debated and eventually passed a bill reforming (in a limited way) the very surveillance Snowden had exposed, replacing the bulk collection of Americans’ phone records with a different program. Last year, it turned out the National Security Agency (NSA) had voluntarily shut that program down, quietly going about its business for months without the program.
Maybe most significantly, courts have found again and again that the Section 215 bulk collection program Snowden exposed was illegal. In December 2013, US District Court judge Richard Leon issued a scathing ruling that suspended the program, writing that “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this,” and that “the government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” [Emphasis in original]
Around the same time, a lawsuit revealed that the FISA court had discovered years earlier that the NSA had serially violated the rules the court had established for handling of the call metadata “since the earliest days” of the program in 2006. Two years later, in 2015, a panel of judges on the Second Circuit Court of Appeals ruled the Section 215 program was illegal in a similarly scathing write-up. “Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” wrote judge Gerard E. Lynch, adding that the program was “inconsistent with the very concept of an ‘investigation,’” and that “Congress cannot reasonably be said to have ratified a program of which many members of Congress — and all members of the public — were not aware.”
All of which brings us to last week, when the Ninth Circuit Court of Appeals ruled that the bulk collection program was illegal, even possibly unconstitutional, in a ruling peppered with nods to the still-exiled whistleblower. “Snowden’s disclosure of the metadata program prompted significant public debate over the appropriate scope of government surveillance,” it stated.
The ruling also made clear that government officials had misled the public about how effective and important the Section 215 program was to national security. Officials like former NSA director Keith Alexander were only ever able to point to one case where the program had been vital to a terrorist prosecution. This was the case before the court, involving a Somali-American cab driver who sent money to a militia fighting invading Ethiopian troops that threatened his family, but also had ties to Al Qaeda. Yet according to the court, even this paltry example wasn’t evidence the bulk collection had yielded anything important.
“Evidence from the government’s wiretap of defendant Moalin’s phone was not the fruit of the unlawful metadata collection,” went the ruling. “If the statements of the public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record.”
So there you have it. Courts, establishment-friendly columnists, lawmakers, even the government officials who loathe Snowden most — all have agreed, virtually from the very beginning, that Snowden did a vital public service with his leak.
Not only that, but as a series of court rulings show, for more than a decade these government officials illegally spied on the public, and lied, and even broke the law to keep that spying hidden, and to justify the existence of mass surveillance the government didn’t even need. And we wouldn’t know about any of it were it not for Snowden.
If you truly believe in the rule of law, ask yourself: how does it make sense that Snowden is the one stuck in permanent exile with a stint in prison hanging over him?