Classroom Law Project Civics Conference for Teachers State Capitol, Salem December 5, 2014
[1]
EDWARD J. SNOWDEN:
HERO OR TRAITOR?
1. The United States Constitution - The Bill of Rights
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”
~ Benjamin Franklin[2]
~ The First Amendment (1791)
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
~ The Fourth Amendment (1791)
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
2. National Security Agency overview[3]
The National Security Agency (NSA), founded in 1952, is the United States of America’s signals intelligence (SIGINT) agency. It is also the largest of our nation’s numerous intelligence organizations. There are seventeen others. The legislation that established it and the Foreign Intelligence Surveillance Act has given the agency a strict focus on overseas, rather than domestic, surveillance. It is the phone and internet interception specialist of the U.S., and is also responsible for code-breaking. It is currently run by U.S. Army General Keith Alexander, who answers to President Obama’s Director of National Intelligence, James Clapper (himself a retired USAF general). The NSA is overseen by congressional intelligence committees, in both the House of Representatives and Senate, who have security clearance. There is also a Foreign Intelligence Surveillance Court, created under the Foreign Intelligence Surveillance Act of 1978, which sits in secret to rule on warrants and collection activities. Since the attacks of 9/11, this secret court has expanded in its role and authority. Some question whether it has overstepped its intended bounds in consenting to government surveillance in the domestic context, absent legitimate foreign intelligence justifications.
The Snowden Files reveal a number of mass-surveillance programs undertaken by the NSA. The agencies are able to access information stored by major U.S. technology companies – Google, Yahoo, Microsoft, Verizon, etc. – often without individual warrants, as well as intercepting mass amounts of data from the fiberoptic cables which make up the backbone of global phone and internet networks. The agencies have also worked to undermine the security standards upon which the internet, commerce, and banking rely. The possibility that the agencies have gone beyond their duties has raised concerns about growing domestic surveillance and possible abuse of U.S. persons’ privacy rights. There are also questions regarding the quality of the laws and government oversight keeping the agencies in check.
3. The Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act of 1978 was created by Congress in response to previous abuses of U.S. persons’ privacy rights (Watergate and beyond) by the United States government. Those abuses had occurred, according to the government, as part of its efforts to counter possible threats to national security.[4]
Unquestionably, such threats existed in and before FISA; however, they pale in comparison to the threats to national security that the United States currently faces. Those threats bear the face of terrorism, primarily foreign but domestic as well. Though FISA is not a legally usable tool for combating domestic terrorism, its electronic surveillance and physical search authority are legal and very effective methods for monitoring the activities of foreign powers and agents of foreign powers while they operate within the United States. The current objective of such operational activities is to thwart terrorist acts.[5]
Further legislation expanded federal laws dealing with foreign intelligence gathering to address physical searches, pen registers and trap and trace devices, and access to certain business records. The USA PATRIOT Act of 2001[6] made significant changes to some of these provisions. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002[7], the Homeland Security Act of 2002[8], the Intelligence Reform and Terrorism Prevention Act[9], the USA PATRIOT Improvement and Reauthorization Act of 2005[10], and the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006.[11],[12]
When a situation occurs that could be international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. Some of the changes in FISA under these public laws are intended to allow information sharing between law enforcement and intelligence elements. In its Final Report, the 9/11 Commission noted that the removal of the pre-9/11 “wall” between intelligence and law enforcement “has opened up new opportunities for cooperative action within the FBI.”[13] Note that the FBI carries the statutory authority for domestic law enforcement and approved surveillance; thus, this “cooperative action” can present interesting legal questions when such information is shared with other intelligence agencies tasked with external monitoring – such as the CIA and U.S. Military.
To better understand this dilemma, it is important to consider the U.S. Supreme Court legal philosophy on the relationship between the government’s national security powers, and the privacy interests of U.S. citizens protected by the Fourth Amendment.
Investigations for the purpose of gathering foreign intelligence have caused concerns about the legitimacy of the Government’s national security interests and the protection of privacy interests. The stage was set for legislation to address these competing concerns in part by Supreme Court decisions on related issues. In Katz v. United States, 389 U.S. 347 (1967), the Court held that the protections of the Fourth Amendment extended to circumstances involving electronic surveillance of oral communications without physical intrusion. The ultimate test, drawn from Justice Harlan’s concurrence in Katz, became:
1) The individual must have exhibited a subjective expectation of privacy, and
2) That subjective expectation of privacy must be one that society is prepared to recognize as reasonable.[14]
The Katz Court stated, however, that its holding did not extend to cases involving
national security.[15] In United States v. United States District Court, 407 U.S. 297 (1972) (the Keith case), the Court regarded Katz as “implicitly recogniz[ing] that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.” Mr. Justice Powell, writing for the Keith Court, framed the matter before the Court as follows:
“The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President’s power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government’s right to protect itself from unlawful subversion and attack and to the citizen’s right to be secure in his privacy against unreasonable Government intrusion.”
United States v. United States District Court (The Keith Case), 407 U.S. at 299 (1972).[16]
The Court held that, in the case of intelligence gathering involving domestic security surveillance, prior judicial approval was required to satisfy the Fourth Amendment. Justice Powell emphasized that the case before it “require[d] no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without the country.”
The Keith decision, coupled with the fallout of the Watergate scandal and other instances of government abuses, prompted Congress to create a clearer policy on foreign surveillance, while also preserving domestic safeguards. With the passage of the Foreign Intelligence Surveillance Act (FISA)[17], Congress sought to strike a delicate balance between these interests when the gathering of foreign intelligence involved the use of electronic surveillance. Collection of foreign intelligence information through electronic surveillance is now governed by FISA and Executive Order 12333, and both have been amended numerous times since their original authorizations, especially since the events of September 11, 2001.[18]
4. Edward J. Snowden Profile[19]
On June 9, 2013, 29-year-old Edward Snowden revealed himself as the source of the NSA revelations published that week in the Guardian and the Washington Post, in a video interview with Glenn Greenwald and Laura Poitras, journalists with those respective sources.
Snowden, an information technology specialist working for U.S. contractor Booz Allen Hamilton, had left his home in Hawaii for Hong Kong days before, and met with Poitras, Greenwald, and another Guardian journalist, Ewen Macaskill. Saying he wanted to launch a global debate on the limits of NSA surveillance, Snowden said, "I understand that I will be made to suffer for my actions," but "I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant."
It has been speculated that the motivation for the timing of Snowden’s disclosures was based, at least in part, on the testimony of DNI Clapper before Congress. When asked if NSA was collecting bulk intelligence on US citizens, DNI Clapper simply responded “No, Sir.” Despite being offered the opportunity to correct or amend the response on public record, his office declined to correct the statement – even with the threat of penalties for perjury from congressional leadership.[20]
Snowden had already left the USA for Hong Kong for fear of legal retribution or punishment as a result of his leaks. For several days, he remained in an undisclosed location in Hong Kong. However, just days after the USA issued an international warrant for his arrest on espionage charges, the whistle-blowing website WikiLeaks announced Snowden had boarded a flight to Russia, as a stop-off to an undisclosed country in South America.
Snowden was expected to board a plane to Cuba the following morning but did not. It was discovered that his temporary travel authorization, issued by an Ecuadorian diplomat, had been revoked. After spending several weeks trapped in a Moscow airport, he was granted one year’s asylum in Russia. He is currently staying at an undisclosed location in the country, much to the distaste of the Obama Administration which would prefer that Mr. Snowden be extradited for prosecution under the Espionage Act. Since his period of asylum in Russia, Snowden has appeared on live-feeds at the 2014 South-by-Southwest Music Festival in Austin, Texas, and in other public forums by video feed.
Snowden, who obtained his first job at the NSA as a security guard during his periodic study of computer science at a Maryland community college, moved up through the ranks quickly in both the NSA and the CIA before leaving the government to take a salaried position as an NSA contractor in Oahu, Hawaii. Despite raking in a salary in excess of $200,000 a year, he gave it up to knowingly and purposefully disclose some of our nation’s most well-guarded secrets, and to live his life abroad in indefinite but voluntary exile to evade prosecution.
Is he a hero, a traitor, or perhaps something in between? We leave that to you to decide...
Find nine profiles of individuals who represent various points of view regarding whether Edward Snowden should be viewed as a traitor or a hero. They include the following:
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first Friday in December: Oregon Civics Day for teachers. It’s the law!
Classroom Law Project Civics Conference for Teachers State Capitol, Salem December 5, 2014
Profile 1: Representative of the American Civil Liberties Union (ACLU)
Profile 2: Concerned Citizen / Academic Professor
Profile 3: Senior Member of the Senate Select Committee on Intelligence
Profile 4: U.S. Intelligence Officer
Profile 5: U.S. Federal Judge
Profile 6: Chairperson of the Senior Select Committee on Intelligence
Profile 7: International Investigative Journalist
Profile 8: The US Attorney General
Profile 9: Criminal Defendant Accused of Terrorism
PROFILE 1: Representative of American Civil Liberties Union (ACLU)
You represent one of the most active and vocal “watchdogs” of American civil liberties in the U.S. The ACLU proclaims itself as our nation's “guardian of liberty,” working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country. You believe that freedom of speech, association, assembly, press and religion, as well as the right to due process and privacy are fundamental rights of every person in the US and the recognition of them is the pillar upon which our democracy stands.
Your priorities are[21]
- You believe that Snowden’s disclosures show that the U.S. government has gone way beyond what is constitutional in its monitoring and surveillance of its citizens. You see this as a clear violation of the people’s right to privacy – the freedom from unwarranted government intrusion into our personal and private affairs.
- As someone who deeply believes that the rights protected by the Bill of Rights are a fundamental necessity to the successful functioning of American democracy, you are extremely concerned with the extent of the government’s infringement on the public’s rights.
- The Constitution proscribes specific protection against the abuse of government power and you are worried Snowden’s disclosures show that these protections are eroding in their effectiveness.
- You believe that Snowden should be lauded for his efforts to bring this unconstitutional infringement on our individual rights to the public spotlight. To you, without Snowden’s disclosures, the adversarial process that keeps the government in check when it abuses individual would be destroyed.
PROFILE 2: Concerned Citizen / Academic Professor[22]
As an accomplished professor of philosophy at a prominent U.S. university, you have studied human rights and political theory extensively, to better understand both the rights of the individual and duties of the government. You see the chief purpose of government is to protect the natural rights of its citizens – their lives, liberty, and property – and you oppose any action by the government to act against those rights without the consent of the people.