Blame Congress, Not Edward Snowdon

A friend sent around Jeffrey Toobin’s well-reasoned argument that National Security Agency leaker Edward Snowden is no hero.

I agree with Toobin’s piece, but I think it also misses the point. The Snowdens, Bradley Mannings and Julian Assanges are an inevitable byproduct of institutions that haven’t kept up with changing technology.

Forty years ago, Daniel Ellsberg photocopied 7,000 pages worth of the Pentagon Papers and circulated them among a few people he thought he could trust, including a New York Times reporter. Today, the papers could fit on a thumb drive, get uploaded to the cloud, and be halfway around the world in an instant. (Interestingly, the federal government officially unassed the documents in 2011, and you can download them from the National Archives right here.)

Today’s secrets aren’t printed tomes. They’re data, field reports, massive files, banal PowerPoint slides. They’re digital, like everything else and they can move easily from the hands of a disgruntled leaker to the rest of us. And the secret-keepers need our data, too. Everything we’re producing is part of an ever-expanding global net of information that can be harvested like grain: wheat separated from chaff, needles uncovered in haystacks.

Snowden’s decisions and fate are certainly interesting. But debating them won’t help us figure out how our 200-year-old Constitutional rights fit in with a modern security state based on fast-as-light bits. Right now, we have an NSA that may or may not be violating the living hell out of the 4th Amendment. For instance, Snowden claims the NSA algorithms can only detect a foreign communications source 51 percent of the time. I don’t see anything in the Constitution calling for respecting our rights a bare majority of the time.

If we wanted to know if the NSA is, indeed, violating millions of people’s rights every day, there’s no one to ask who can give us a straight answer. There’s no panel of security, privacy and Constitutional experts to tell us whether or not the NSA is cutting corners on our rights to protect us from harm. There’s no one to tell us whether or not all the data being collected is being used just to fight the terrorists, of if it’s leaking, too, and being used for unauthorized domestic purposes.

[Update 7/3/13 — I was reading a hard copy of the Post and happened upon an article that explained such a panel does, in fact, exist, but that it’s been moribund for years. One result of the Snowden leak is that it may become more active and various positions on said panel may actually be filled. Good on ‘ya, Ed.]

And that’s Congress’s fault. The PATRIOT Act’s 2001 journey from introduction in the House to passage by both chambers took three days. The Senate, the great filibustering cooling saucer of the democratic experiment, went 98-1 in favor. Russ Feingold and Patrick Leahy were the only ones with enough temerity to ask pertinent questions in the mad rush after the attacks to DO SOMETHING. (Only Feingold ultimately voted against.)

Congress told the president to go ahead and create a massive, modern security state with no oversight, no transparency and no balm for the Constitutional soul of our democracy. In effect, Congress basically dared someone like Snowden to become a leaker.

Now that the law is on the books, nobody wants to be the one who takes away an anti-terrorism tool. It makes it too easy for their political opponents to blame them — and their party — the next time an attack happens. So instead, Congress should add some checks to the system. Give us a little oversight. Give us a few trusted people who can analyze what the hell the NSA is doing behind closed doors and report back to the American people — without compromising our security — to let them know whether or not our rights are being infringed. Maybe we’ll think it’s worth it. Maybe we’re okay with the NSA intercepting our drunken texts if that means someone doesn’t get blown up. Really. But we’re citizens damn it and we deserve to have just a modicum of information so that we the governed may offer or refuse our consent.

Leave a Reply

Your email address will not be published. Required fields are marked *