The empire strikes back: How Brandeis foreshadowed Snowden and Greenwald

So-called liberals attack the whistle-blower duo -- and a brilliant Supreme Court justice saw it all coming

In the famous wiretapping case Olmstead v. United States, argued before the Supreme Court in 1928, Justice Louis Brandeis wrote one of the most influential dissenting opinions in the history of American jurisprudence. Those who are currently engaged in what might be called the Establishment counterattack againstGlenn Greenwald and Edward Snowden, including the eminent liberal journalists Michael Kinsley and George Packer, might benefit from giving it a close reading and a good, long think.

Brandeis’ understanding of the problems posed by a government that could spy on its own citizens without any practical limits was so far-sighted as to seem uncanny. (We’ll get to that.) But it was his conclusion that produced a flight of memorable rhetoric from one of the most eloquent stylists ever to sit on the federal bench. Government and its officers, Brandeis argued, must be held to the same rules and laws that command individual citizens. Once you start making special rules for the rulers and their police – for instance, the near-total impunity and thick scrim of secrecy behind which government espionage has operated for more than 60 years – you undermine the rule of law and the principles of democracy.

“Our Government is the potent, the omnipresent teacher,” Brandeis concluded. “For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

Kinsley’s anti-Greenwald screed in the New York Times Book Review, and Packer’slonger and subtler essay for the British magazine Prospect, deliberately ignore or finesse the question of what the government has taught us through its black budgets, its institutional paranoia, its super-secret and extra-constitutional spycraft. Those two articles, and others like them, amount to a sophisticated effort to change the subject on the Greenwald-Snowden affair now that its initial impact has faded, and also to reassure by way of bewilderment: In the face of all this confusion about who’s right and who’s wrong, the best policy is to keep calm, carry on and leave all this boring stuff to the experts. Instead of focusing on the larger issues of privacy, power and secrecy articulated by Brandeis or on the corroded nature of contemporary democracy, Kinsley and Packer urge us to deplore the perceived personality defects or political misjudgments of Greenwald and Snowden, and throw up a virtual smokescreen of invidious comparison. OK, maybe that whole NSA thing wasn’t super awesome – but you could be living in Communist Russia!

You know, I have some criticisms of Glenn Greenwald too, and I’d be happy to share them with you, or with him, on some other occasion. George Packer is no dolt, and he scores a few hits on both Greenwald and Snowden in his enormous and detailed article, which at least on the surface is much more evenhanded and thoughtful than Kinsley’s drive-by hackwork. But to observe that Greenwald can make infelicitous or inconsistent statements at times, or that his argument about the chilling cultural effect of mass surveillance is not well worked out, does not add up to “a pervasive absence of intellectual integrity.” For that I’m afraid that Packer – still in ideological rehab, it seems, for his “liberal interventionist” support of the Iraq War and the neoconservative foreign-policy agenda – had better look in the mirror.

When Greenwald derides mainstream journalists (in his response to Kinsley) as “jingoistic media courtiers” tasked with attacking “anyone who voices any fundamental critiques of American political culture,” he is not being polite or diplomatic, and is no doubt painting with too broad a brush. There are numerous exceptions, and as Greenwald surely knows, the newsrooms of the New York Times, the Washington Post and the Wall Street Journal have over the decades been the sites of vigorous internal debate about how best to cover issues of surveillance, espionage and national security. But as a general tendency, he’s more right than wrong, and in this instance Kinsley and Packer are fighting a vigorous rearguard action on behalf of the entrenched interests of the Beltway elite, the self-described serious grownups of the “permanent government” and their well-connected media allies.

Any pretense of a critical relationship toward power — which was once supposed to be the journalist’s role in a democratic society — has been abandoned altogether (in Kinsley’s case) or eaten away to nothing by reasonable-sounding nuance and dispassionate analysis, as with Packer. Kinsley’s review has already been subjected to widespread mockery, even by “mainstream” commentators like the Washington Post’s Erik Wemple, and no wonder; it reads as if it had been cranked out during a single Acela Express trip from New York to D.C. (and filed by the time he reached Wilmington). Kinsley appears to feel that the entire topic of Greenwald and Snowden is beneath him, and that it raises no questions to which the right-thinking people in his circle don’t already know the answers: Journalists have no special rights or privileges, David Gregory was being “perfectly reasonable” when he accused Greenwald on “Meet the Press” of being a criminal, and we simply can’t allow “newspapers and reporters to chase down and publish any national security leaks they can find.” Who gets to decide how, when and whether government secrets are released? Why, the government, of course! Isn’t it obvious? More

Dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States

 

© 2014

Snowden made the right call when he fled the U.S.

Daniel Ellsberg is the author of “Secrets: A Memoir of Vietnam and the Pentagon Papers.” He was charged in 1971 under the Espionage Act as well as for theft and conspiracy for copying the Pentagon Papers. The trial was dismissed in 1973 after evidence of government misconduct, including illegal wiretapping, was introduced in court.

Many people compare Edward Snowden to me unfavorably for leaving the country and seeking asylum, rather than facing trial as I did. I don’t agree. The country I stayed in was a different America, a long time ago.

After the New York Times had been enjoined from publishing the Pentagon Papers — , the first prior restraint on a newspaper in U.S. history — and I had given another copy to The Post (which would also be enjoined), I went underground with my wife, Patricia, for 13 days. My purpose (quite like Snowden’s in flying to Hong Kong) was to elude surveillance while I was arranging — with the crucial help of a number of others, still unknown to the FBI — to distribute the Pentagon Papers sequentially to 17 other newspapers, in the face of two more injunctions. The last three days of that period was in defiance of an arrest order: I was, like Snowden now, a “fugitive from justice.”

Yet when I surrendered to arrest in Boston, having given out my last copies of the papers the night before, I was released on personal recognizance bond the same day. Later, when my charges were increased from the original three counts to 12, carrying a possible 115-year sentence, my bond was increased to $50,000. But for the whole two years I was under indictment, I was free to speak to the media and at rallies and public lectures. I was, after all, part of a movement against an ongoing war. Helping to end that war was my preeminent concern. I couldn’t have done that abroad, and leaving the country never entered my mind.

There is no chance that experience could be reproduced today, let alone that a trial could be terminated by the revelation of White House actions against a defendant that were clearly criminal in Richard Nixon’s era — and figured in his resignation in the face of impeachment — but are today all regarded as legal (including an attempt to “incapacitate me totally”).

I hope Snowden’s revelations will spark a movement to rescue our democracy, but he could not be part of that movement had he stayed here. There is zero chance that he would be allowed out on bail if he returned now and close to no chance that, had he not left the country, he would have been granted bail. Instead, he would be in a prison cell like Bradley Manning, incommunicado.

He would almost certainly be confined in total isolation, even longer than the more than eight months Manning suffered during his three years of imprisonment before his trial began recently. The United Nations Special Rapporteur for Torture described Manning’s conditions as “cruel, inhuman and degrading.” (That realistic prospect, by itself, is grounds for most countries granting Snowden asylum, if they could withstand bullying and bribery from the United States.)

Snowden believes that he has done nothing wrong. I agree wholeheartedly. More than 40 years after my unauthorized disclosure of the Pentagon Papers, such leaks remain the lifeblood of a free press and our republic. One lesson of the Pentagon Papers and Snowden’s leaks is simple: secrecy corrupts, just as power corrupts.

In my case, my authorized access in the Pentagon and the Rand Corp. to top-secret documents — which became known as the Pentagon Papers after I disclosed them — taught me that Congress and the American people had been lied to by successive presidentsand dragged into a hopelessly stalemated war that was illegitimate from the start.

Snowden’s dismay came through access to even more highly classified documents — some of which he has now selected to make public — originating in the National Security Agency (NSA). He found that he was working for a surveillance organization whose all-consuming intent, he told the Guardian’s Glenn Greenwald, was “on making every conversation and every form of behavior in the world known to them.”

It was, in effect, a global expansion of the Stasi, the Ministry for State Security in the Stalinist “German Democratic Republic,” whose goal was “to know everything.” But the cellphones, fiber-optic cables, personal computers and Internet traffic the NSA accesses did not exist in the Stasi’s heyday.

As Snowden told the Guardian, “This country is worth dying for.” And, if necessary, going to prison for — for life.

But Snowden’s contribution to the noble cause of restoring the First, Fourth and Fifth amendments to the Constitution is in his documents. It depends in no way on his reputation or estimates of his character or motives — still less, on his presence in a courtroom arguing the current charges, or his living the rest of his life in prison. Nothing worthwhile would be served, in my opinion, by Snowden voluntarily surrendering to U.S. authorities given the current state of the law.

I hope that he finds a haven, as safe as possible from kidnapping or assassination by U.S. Special Operations forces, preferably where he can speak freely.

What he has given us is our best chance — if we respond to his information and his challenge — to rescue ourselves from out-of-control surveillance that shifts all practical power to the executive branch and its intelligence agencies: a United Stasi of America. More

 

A Shameful Day To Be A American Citizen by Dave Lindorff

I have been deeply ashamed of my country many times. The Nixon Christmas bombing of Hanoi and Haiphong was one such time, when hospitals, schools and dikes were targeted.

Edward Snowden

The invasion of Iraq was another. Washington’s silence over the fatal Israeli Commando raid on the Gaza Peace Flotilla--in which a 19-year-old unarmed American boy was murdered--was a third. But I have rarely been as ashamed and disgusted as I was Saturday reading that US Attorney General Eric Holder had sent a letter to the Russian minister of justice saying that the US would “not seek the death penalty” in its espionage case against National Security Agency whistleblower Edward Snowden, promising that even if the US later brought added charges against Snowden after obtaining him, they would not include any death penalty, and vowing that if Snowden were handed over by Russia to the US, he would “not be tortured.”

So it has come to this: That the United States has to promise (to Russia!) that it will not torture a prisoner in its control -- a US citizen at that -- and so therefore that person, Edward Snowden, has no basis for claiming that he should be “treated as a refugee or granted asylum.”

Why does Holder have to make these pathetic representations to his counterpart in Russia?

Because Snowden has applied for asylum saying that he is at risk of torture or execution if returned to the US to face charges for leaking documents showing that the US government is massively violating the civil liberties and privacy of every American by monitoring every American’s electronic communications.

Snowden has made that claim in seeking asylum because he knows that another whistleblower, Pvt. Bradley Manning, was in fact tortured by the US for months, and held without trial in solitary confinement for over a year before being finally put on trial in a kangaroo court, where the judge is as much prosecutor as jurist, and where his guilt was declared in advance by the President of the United States -- the same president who has also already publicly declared Snowden guilty too.

It is incredibly shameful that we US citizens have to admit that we live in a country that tortures its prisoners, that casually executes people who are mentally retarded, who are innocent, who had defense attorneys who slept through their clients’ trials, whose prosecutors slept with the judge, who were denied access to DNA evidence that could have proven their innocence, or who were convicted based upon the lies of prosecutors and prosecution witnesses.

This country’s “justice” system has become so perverted and politically tainted that the rest of the world, including Russia, knows that Snowden is telling the truth when he says he cannot hope to receive a fair trial here. Indeed, Congress has passed laws, and the President has signed laws, giving this government the power to lock someone like Snowden up indefinitely without trial, to torture him, and even to kill him, not through a jury decision on capital punishment, but simply on the basis of a secret “finding” by the President that he has aided or abetted terrorism.

No wonder Russia and several other countries, including Venezuela, Bolivia and Nicaragua, have offered or are considering offering Snowden asylum.

And no wonder that, in its obsession with getting its tyrannical hands on him, this government is willing to promise (for what a promise from the US government is worth) not to kill him or torture him.

Shame and anger are the only appropriate responses to that letter from Holder.

If this were a country that honored the rule of law, Attorney General Holder would not need to promise not to torture. He would need only to point to the US Constitution, with its ban on “cruel and unusual punishment.” He would not need to promise a fair trial to Snowden, with no capital punishment on any charges. He could point instead to the Constitution’s promise of a presumption of innocence and of a public trial by a jury of the accused’s peers, to make the case against the granting of asylum.

In such a country, someone like Snowden, with the help of a crack legal team, would have a fair shot at proving to a jury his innocence of the government’s frivolous espionage charges. He’d have a fair chance of convincing at least one juror of his absolute innocence of any crime, making his conviction impossible.

But that is not what this country is, especially today.

In today’s US courts, we know the “Justice” Department would seek to bar testimony about Snowden’s motives in leaking the documents he downloaded from the NSA’s computers. They would ask the judge to limit defense arguments and testimony in the case to the narrow issue of whether or not he downloaded and leaked files, not to whether those files exposed Constitutional violations and needed to be brought to the public’s attention. Our judges, nominated by presidents and confirmed by senators, Democrat and Republican, who want jurists who favor government secrecy and who generally side with the government against the people, can be counted on to grant the government’s motions.

In such circumstances, a defendant like Snowden, facing charges of espionage or theft of government secrets, has no ability to defend himself. The trial would be like in a Lewis Carroll event: “Verdict first, trial later!” More

 

Not all secrets are alike

When it comes to national security, there are two kinds of secrets. One is the strict military secret. Examples would include the design specifications of a new weapon or planned troop movements.

Bulletin of Atomic Scientists

Giving such secrets to an adversary may tip the military balance and is clearly damaging to national security. Most people have little trouble seeing those who give away such secrets—like Manhattan Project physicist Klaus Fuchs, who gave design details of the first atomic bomb to the Soviets—as traitors who should be punished.

The second kind of secret is what anthropologists call the “public secret.” These are denied yet known. Their ambiguous status as simultaneously public and secret torques them with psychological conflict. The concept of the public secret can best be grasped through examples from family life. It may be a public secret that a man is having an affair, but as long as his family does not confront him, the pact of silence allows everyone to behave as if he really does work late a lot at the office. It may be a public secret that a woman is an alcoholic, but as long as no one mentions the bottles stashed in odd places or the mysterious mood swings, public appearances can be maintained. As anyone familiar with such family situations knows, the consequences of saying publicly what everyone knows privately can be profound, forcing corrections in behavior or breaking families apart. Not infrequently, as Henrik Ibsen famously dramatized in his play An Enemy of the People, opprobrium attaches most harshly not to the transgressor, but to the person who tells the truth out loud.

It is not just families that have public secrets. Religious institutions do too, as we learned from the child abuse scandal in the Catholic Church. And states have public secrets. For example, as the political thinker Michael Ignatieff has written, in Argentina under the military junta that ruled from 1976 to 1983, it was a public secret that activists and radicals were quietly being abducted by the military, tortured, and killed. This policy, under which between 15,000 and 30,000 citizens disappeared, was not publicly announced, and wealthy elites who had a vested interest in not knowing felt confident in denying it. Still, it was widely known in the way that whispered things are known. Eventually the ambiguity of the public secret was resolved and the facts were made public thanks to the indefatigable activism of the group the Mothers of the Disappeared, who demonstrated weekly in the Plaza de Mayo in Buenos Aires, and a truth commission appointed by President Raul Alfonsin. While the Mothers of the Disappeared could be dismissed as crackpots, a state commission armed with official documents finally had to be believed. As Ignatieff writes, the truth commission stripped the public secret of its deniability, forcing it into the open and working “to reduce the number of lies that can be circulated unchallenged in public discourse.” He observes that “its work has made it impossible to claim, for example, that the military did not throw half-dead victims into the sea from helicopters.”

Often the state’s greatest rage is directed at those who reveal public secrets, not military secrets. Richard Nixon called Daniel Ellsberg “the most dangerous man in America” not because he shared military secrets with the Vietcong (he did not), but because in giving the Pentagon Papers to the New York Times (and thus the American people), he made it impossible to deny what many already suspected—that the US government had lied about the reasons for the Vietnam War and about progress in fighting it.

US national security officials have likewise been enraged by Bradley Manning, the US Army soldier who gave WikiLeaks 250,000 diplomatic cables and 500,000 Army reports. Although the Obama administration claims that Manning and WikiLeaks gave away military secrets, for the most part they caused embarrassment by revealing public secrets. Many Americans had long been sure that, military propaganda notwithstanding, some American troops in Iraq were prone to using violence indiscriminately, killing innocents, and enjoying the act of killing, but Manning’s release of the “collateral murder” video, shot from a US military helicopter, gave visceral and undeniable form to inchoate knowledge. Likewise, in 2011 there were few Tunisians who did not know that their government was corrupt, but the people did not rise up against their government until WikiLeaks revealed that the US ambassador had cabled that "Corruption in Tunisia is getting worse. Whether it's cash, services, land, property, or yes, even your yacht, President Ben Ali's family is rumored to covet it and reportedly gets what it wants."

Even though he has yet to be found guilty, Manning has been punished harshly. The United Nations special rapporteur on torture complained that Manning—held for months in solitary confinement, often naked, and deprived of sleep—had been subjected to “cruel, inhuman and degrading treatment in violation of Article 16 of the Convention Against Torture.”

Like Manning, Edward Snowden gave away a public secret, revealing that the National Security Agency does not just spy on foreigners, but in violation of the legal framework established after the Vietnam War, also harvests vast quantities of information on the communications of American citizens, including email messages, browsing histories, postal records, and telephone metadata. When public rather than military secrets are given away, the state always insists that military security has been damaged, so it should not surprise us that the Obama administration claims Snowden gave away military secrets that will help those bent on attacking the United States. But there is a reason the top leadership of Al Qaeda has communicated for years by personal courier, and it would be a terrorist or insurgent with a very short life expectancy who would communicate by cell phone or unencrypted email. Snowden’s real crime was to reveal incontrovertibly what some already guessed and others might prefer not to know: The US government has secretly created a massive apparatus of domestic surveillance on the edge of the law.

American leaders say they will avoid future Mannings and Snowdens by segmenting access to information so that individual analysts cannot avail themselves of so much, and by giving fewer security clearances, especially to employees of contractors such as Booz Allen Hamilton, where Snowden worked. This will not work. Segmentation of access runs counter to the whole point of the latest intelligence strategy, which is fusion of data from disparate sources. The more Balkanized the data, the less effective the intelligence. And, as Dana Priest and William Arkin make clear in their important bookTop Secret America, intelligence agencies are collecting so much information that they have to hire vast numbers of new employees, many of whom cannot be adequately vetted. Since 9/11 the National Security Agency’s workforce has grown by a third, to 33,000, and the number of private companies it relies on for contractors has tripled to close to 500. The more people know your secrets, the more likely it is they will leak out.

But, in the final analysis, the reason there will be more Mannings and Snowdens is that so many American secrets are not strict military secrets but scandalous public secrets pertaining to ways the US national security state behaves that are at odds with national or international law, or in conflict with fundamental national values. Whether one condones what Snowden did or not, it is clear that he was motivated by a deep sense of indignation that his government was doing something profoundly wrong. "If you want a secret respected,” said Senator Daniel Patrick Moynihan, one of the country's greatest commentators on secrecy, “see that it's respectable in the first place." More