The Snowden Case

Most Americans who know anything about the National Security Agency probably got their mental picture of it from a 1998 thriller called Enemy of the State. A lawyer (Will Smith), swept up by mistake into the system of total surveillance, suddenly finds his life turned upside down, his family watched and harassed, his livelihood taken from him and the records of his conduct altered and criminalised. He is saved by a retired NSA analyst (Gene Hackman) who knows the organisation from innards to brains and hates every cog and gear that drives it. This ally is a loner. He has pulled back his way of life and associations to a minimum, and lives now in a desolate building called The Jar, which he has proofed against spying and tricked out with anti-listening armour, decoy-signal devices and advanced encryption-ware. From his one-man fortress, he leads the hero to turn the tables on the agency and to expose one of its larger malignant operations. Michael Hayden, who became the director of the NSA in 1999, saw the movie and told his workers they had an image problem: the agency had to change its ways and inspire the trust of citizens. But in 2001 Hayden, like many other Americans, underwent a galvanic change of consciousness and broke through to the other side. In the new era, in order to fight a new enemy, he saw that the United States must be equipped with a secret police as inquisitive and capable as the police of a totalitarian state, though of course more scrupulous. Gripped by the same fever and an appetite for power all his own, Dick Cheney floated the idea of Total Information Awareness (soliciting Americans to spy on their neighbours to fight terrorism), but found the country not yet ready for it. So he took the project underground and executed it in secret. Cheney issued the orders, his lawyer David Addington drew up the rationale, and Hayden at NSA made the practical arrangements. Eventually Cheney would appoint Hayden director of the CIA.

Americans caught our first glimpse of the possible scope of NSA operations in December 2005 when the New York Times ran a story by James Risen and Eric Lichtblau on massive warrantless surveillance: ‘Bush Lets US Spy on Callers without Courts’. The government was demanding and getting from the telecoms all the records it wanted of calls both to and from their customers. But the feed had been deliberately routed around the court set up by the Foreign Intelligence Surveillance Act to issue warrants for searches of this kind. The Times, at the urging of the Bush White House, had held back the story for a year, across the significant divide of the 2004 presidential election. Even so, James Risen, who protected the source for his leak, was threatened with prosecution by the Bush justice department, and under Obama that threat has not been lifted. As a candidate in 2007 and early 2008, Obama took an unconditional stand against data mining and warrantless spying, which he softened, well before the election, into a broad commitment to oversight of the existing programmes by the inspectors general of the relevant departments and agencies. Over the past five years, Obama’s reduction of the pledge to a practice had largely been taken on trust.

Such was the background of almost forgotten anxiety and suspended expectation when, on 6 and 7 June, the Guardian struck with its stories on US data mining and internet surveillance. The collection of ‘to’ and ‘from’ numbers and the duration of phone calls had, it turned out, not only continued but expanded under Obama. The government reserves in storage and taps (on occasion) the emails and internet activity of the customers of nine major companies including Google, Apple and Microsoft. The major difference from the Cheney machinery seems to be that general warrants are now dealt out, rather than no warrants at all, but general warrants don’t meet the requirement of ‘probable cause’ and the specification of the place to be searched and items to be seized. The Bill of Rights wanted not to make things too easy for the police. Now, on the contrary, the government gets the data wholesale, secure in the knowledge that a gag order prevents the corporate channels from speaking about the encroachment, and individual targets are sealed off from any knowledge of how they are watched. A lawlike complexion is given to the enterprise by the fact that the government doesn’t itself go into personal records without the consent of the citizenry; the records, instead, are held by private companies and then siphoned off by the government under legal compulsion.

Our communicative doings may be likened to a fishpond stocked with both actual and conjectural fish. The new protocol allows the government to vacuum up the entire pond, while preserving a posture quite innocent of trespass, since it means to do nothing with the contents just then. The test comes when a discovery elsewhere calls up an answering glimmer of terror or a terror-link from somewhere in your pond; at which point the already indexed contents may be legally poured out, dissected and analysed, with effects on the owner to be determined.

Edward Snowden made these discoveries, among others, while working as an analyst for the CIA, the NSA and the security outfit Booz Allen Hamilton (whose present vice chairman, Mike McConnell, is a former director of the NSA). Imperialism has been defined as doing abroad what you would like to do at home but can’t. Snowden, from the nature of his work, was made to recognise with growing dismay that what American intelligence was doing to terrorist suspects abroad it was also doing to 280 million unsuspecting Americans. The surveillance-industrial complex has brought home the intrusive techniques of a militarised empire, with its thousand bases and special-ops forces garrisoned in scores of countries. It has enlarged itself at home, obedient to the controlling appetite of an organism that believes it must keep growing or die. Of course, the US government cannot do to Americans what it does routinely to non-Americans. The key word in that proposition, however, is government. In fact, the same government can do all it likes with the data on American citizens, so long as it obtains a follow-up warrant from the FISA court. This court is always in session but its proceedings are secret; and qualified observers say it grants well over 99 per cent of the warrants requested. There is therefore no point at which the move by government from data collection to actual spying on citizens can come under genuine oversight or be held accountable.

In ‘this our talking America’ (as Emerson called it), we prefer to talk about personalities. It could be anticipated that the ‘leaker’ of NSA secrets, and not the trespass by government against the people, would become the primary subject of discussion once the authorities produced a name and a face. He was destined to have his portrait fixed by the police and media, blurred and smeared to look, in some vague way, probably psychopathic, and once arrested to be dispatched to trial and prison. The Obama justice department, under its attorney general Eric Holder, has in the last four years prosecuted six ‘whistleblowers’ under the Espionage Act of 1917: twice the number prosecuted by all previous administrations combined. Before he fled Hawaii for Hong Kong, Snowden kept close watch on those prosecutions, and on the treatment of Bradley Manning in the brig at Quantico and in his military trial. Snowden resolved not to endure Manning’s fate. He would get the story out in his own way, and would also describe his own motives as he understood them, before the authorities published his image and tracked it over with the standard markings of treachery and personal disorder. So the first Guardian stories were followed, in the same week, by a twelve and a half minute video interview of Snowden, shot by the documentary director Laura Poitras. The interviewer was Glenn Greenwald, a constitutional lawyer as well as a Guardian columnist, whom Snowden had sought out and who, in defiance of American journalistic etiquette, served as author or coauthor of early Guardian stories from the NSA leaks. The principles that guided Snowden’s thinking and something of his views could be inferred already from his choice of Greenwald and Poitras as the persons to help convey his story to the public.

I have now watched this interview several times, and have been impressed by the calm and coherence of the mind it reveals. Snowden had looked for ways of serving his country in the grim months after September 2001 (he would have been 18 then). He joined the army, hoping to be taken on in special forces, but broke both legs in a training accident and then dropped out, disaffected with an anti-Arab racism in the mood which took him by surprise. He had never finished high school but had no difficulty passing the test for a diploma equivalent. Since his computer skills were prodigious and easily recognised, he was an obvious candidate for well-paying security work in the IT industry, and, by his mid-twenties, had worked his way to the highest clearance for analysing secret data. At the same time he was educating himself in the disagreeable facts of America’s War on Terror, and the moral and legal implications of the national security state. He was pressed by larger doubts the more he learned. Not all these particulars emerged in the interview, but all could be inferred; and Snowden’s profile differed from that of the spy or defector (which he was already charged with being) in one conspicuous way. He did not think in secret. In conversations with friends over the last few years, he made no effort to hide the trouble of conscience that gnawed at him. It also seems to be true – though in the interview he doesn’t clearly formulate the point – that even as he went to work and made use of his privileged access, he felt a degree of remorse at the superiority he enjoyed over ordinary citizens, any of whom might be subject to exposure at any moment by the eye of the government he worked for. The remorse (if this surmise is correct) came not from a suspicion that he didn’t deserve the privilege, but from the conviction that no one deserved it.

And yet, the drafters of the new laws, and the guardians of the secret interpretation of those laws, do feel that they deserve the privilege; and if you could ask them why, they would answer: because there are elections. We, in America, now support a class of guardians who pass unchallenged through a revolving door that at once separates and connects government and the vast security apparatus that has sprung up in the last 12 years. The cabinet officers and agency heads and company heads ‘move on’ but stay the same, from NSA to CIA or from NSA to Booz Allen Hamilton; and to the serious players, this seems a meritocracy without reproach and without peril. After all, new people occasionally come in, and when they do they enter the complex voluntarily. They do it often enough from unselfish motives at first, and among the workforces of these various institutions you may find Americans of every race, creed and colour.

Nothing like this system was anticipated or could possibly have been admired by the framers of the constitutional democracies of the United States and Europe. The system, as Snowden plainly recognised, is incompatible with ‘the democratic model,’ and can only be practised or accepted by people who have given up on every element of liberal democracy except the ideas of common defence and general welfare. A few hours after the 11 September bombings, Cheney told his associates that the US would have to become for a time a nation ruled by men and not laws. But his frankness on this point was exceptional. It may safely be assumed that most of the players go ahead in their work without realising how much they have surrendered. Those who are under thirty, and less persistent than Snowden in their efforts of self-education, can hardly remember a time when things were different.

The year 2008 brought a remission for Snowden, because the Obama campaign promised a turn away from the national security state and the surveillance regime. He cherished the warmest hopes for the presidency to come. I have talked to young men and women like him – a dozen or more who made a point of saying it that way – for whom the wrecked promise of a liberating change was worse than no promise at all. Snowden may have been especially affected because he could see, from inside, how much was not changing, and how much was growing worse. All this, it should be added, is to take his report of himself at face value; but on the evidence thus far, it seems reasonable as well as generous to do so. He took an enormous risk and performed an extraordinary action, and he now lives under a pressure of fear that would cause many people to lose their bearings. Though apparently still in Hong Kong, he says he has no intention of going to China. He knows that if he does take that step, the authorities will have no trouble making him out to have been a simple spy.

The first wave of slanders broke as soon as the video interview was released. What was most strange – but predictable once you thought about it – was how far the reactions cut across political lines. This was not a test of Democrat against Republican, or welfare-state liberal versus big-business conservative. Rather it was an infallible marker of the anti-authoritarian instinct against the authoritarian. What was distressing and impossible to predict was the evidence of the way the last few years have worn deep channels of authoritarian acceptance in the mind of the liberal establishment. Every public figure who is psychologically identified with the ways of power in America has condemned Snowden as a traitor, or deplored his actions as merely those of a criminal, someone about whom the judgment ‘he must be prosecuted’ obviates any further judgment and any need for thought. Into this category immediately fell the Democratic and Republican leaders of Congress, Nancy Pelosi, John Boehner, Mitch McConnell, Harry Reid, as well as every lawmaker closely associated with ‘intelligence oversight’ of the War on Terror: Dianne Feinstein, Mike Rogers, Lindsey Graham – here, once again, cutting across party lines. Those who praised Snowden’s action and (in some cases) his courage included the left-wing populist Michael Moore, the right-wing populist Glenn Beck, non-statist liberals such as Senator Sheldon Whitehouse of Rhode Island and Dick Durbin of Illinois, and non-statist Republicans from the West and South: Senator Rand Paul of Kentucky and Mike Lee of Utah. But there were others in dissent, more than at any time since the vote on the Iraq war, lawmakers who insisted that the secret surveillance by government was a matter of deeper import than anything about the character of Snowden himself.

Senators Ron Wyden and Mark Udall were prominent here. It was Wyden who had declared many months earlier that Americans would be stunned and angry when they learned how the government acted on its secret interpretation of its right to carry out searches and seizures. Wyden, too, had been the lawmaker who asked James Clapper, the director of national intelligence, ‘Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?’ and received in reply the now entirely penetrable untruth: ‘Not wittingly.’ Clapper later regretted that his reply was ‘too cute by half’. The same characterisation would fit the remarks by President Obama on 7 June: ‘Nobody is listening to your telephone calls. That’s not what this programme’s about.’ He let fall the cool dismissal with an assured paternal air, a camp counsellor addressing an unruly pack of children. But the New York police commissioner, Ray Kelly, was still unsatisfied: ‘I don’t think it should ever have been made secret,’ Kelly said on 17 June, and added: ‘What sort of oversight is there inside the NSA to prevent [malfeasance]?’ The president has said that the necessary reforms are in place: ‘I came in with a healthy scepticism about these programmes. My team evaluated them. We scrubbed them thoroughly.’ But this was another verbal juggle and an economy of truth. They don’t listen to your conversations unless they want to; but if they want to, they listen. Obama’s ‘team’ scrubbed the programmes and took out some bad bits, but they added some of their own and then shut the door by bringing the process under the authority of a secret court. Outlines of the new proceedings are shown to eight members of Congress who are forbidden by law to say what they learn.

Of the public expressions of contempt for the man who opened the door, one deserves particular attention. The New Yorker legal journalist Jeffrey Toobin said that Snowden was a ‘narcissist’, and the word was repeated by the CBS news presenter Bob Schieffer. What were they thinking? ‘Narcissist’ is so far from capturing any interesting truth about Snowden that the slip invites analysis in its own right. In this twelfth year of our emergency, something has gone badly wrong with the national morale. There are cultured Americans who have lived so long in a privileged condition of dependence on the security state that they have lost control of the common meanings of words. A narcissist in Snowden’s position would have defected anonymously to Russia, sold his secrets for an excellent price, and cashed in by outing himself in a memoir published in 2018, studded with photographs of his dacha and his first two wives. Whatever else may be true of him, the actual Snowden seems the reverse of a narcissist. He made a lonely decision and sacrificed a prosperous career for the sake of principles that no one who values personal autonomy can be indifferent to. That is a significant part of what we know thus far.

Fear must have been among the strongest emotions that penetrated Snowden when he grasped the total meaning of the maps of the security state to which he was afforded a unique access. In one sort of mind, and it characterises the majority of those in power, the fear turns adaptive and changes slowly to compliance and even attachment. In a mind of a different sort, the fear leads to indignation and finally resistance. But we should not underestimate the element of physical fear that accompanies such a moral upheaval. Since the prosecutions of whistleblowers, the abusive treatment of Manning and the drone assassinations of American citizens have been justified by the president and his advisers, a dissident in the US may now think of his country the way the dissidents in East Germany under the Stasi thought of theirs. ‘The gloves are off.’ Nor should we doubt that a kindred fear is known even to the persons who control the apparatus.

21 June