Edward Snowden: The Great Criminal

As Edward Snowden’s name is bandied about, with a debate emerging over whether he is a hero or a criminal, whistleblower or traitor, the words of philosopher Walter Benjamin come to mind.  In his 1921 essay, The Critique of Violence, Benjamin discusses the law’s goal to pursue the monopoly on violence:

The law’s interest in a monopoly of violence vis-a-vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving the law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by its mere existence outside the law.

Here Benjamin restates one of the fundamental goals of classical liberal political philosophy, at least for philosophers such as Hobbes and Locke, namely to eliminate the use of violence from everyone except the state and its duly appointed deputies. This is why in Locke, the state ‘agrees’ to protect the rights of individuals in exchange for individuals giving up their right of retribution and punishment. The right of violence becomes the sole provenance of the state, whether through the death penalty, prisons, or defense of the state itself.

However, as we also know, the state monopolizes and regulates the use of violence in the interests of those who have the most influence over the state: these wealthy men who decide the personification of the state. In the 1600’s English North America, this would have been white Englishmen. In the 1910’s, Benjamin was interested in the role of workers in challenging the monopoly of state violence.

Understood in this way, the right to strike constitutes in the view of labor, which is opposed to that of the state, the right to use force in attaining certain ends. The antithesis between the two conceptions emerges in all its bitterness in face of a revolutionary general strike. In this, labor will always appeal to its right to strike, and the state will call this appeal an abuse, since the right to strike was not “so intended,” and take emergency measures.

Perhaps unsurprisingly, unions aroused a widespread secret admiration from a public that was weary of the state’s imposition.  Today, as Occupy and other movements point out, the most influential are still the 1%–though the colors, sexes, and sexualities of this privileged demographic have been somewhat expanded.

For example, Locke’s story of slavery is more accurately read as the story of colonialism –and eventually—imperialism. Strangers attack Englishmen. Englishmen fight back and win. They have the right to kill the strangers, but grant them their lives in exchange for their agreeing (at least implicitly) to be slaves. It is, an apologia for the conquest of American Indians. But in the modern moment, it is a story that is replicated by Samuel Huntington in the “Clash of Civilizations.”

Back to Benjamin, who is thought to have committed suicide in Southern France as he was trying to flee from the Nazis.  Here is another excerpt from the “Critique of Violence”:

The same may be more drastically suggested if one reflects how often the figure of the “great” criminal, however repellent his ends may have been, has aroused the secret admiration of the public. This cannot result from his deed, but only from the violence to which it bears witness.

How might this apply to Edward Snowden? Snowden’s ‘crime,’ if you will, was that he disrupted the state’s ability to protect its monopoly of violence by exposing its widespread surveillance activities.  He did this despite the widely claimed fears of interested parties that doing so would “undermine national security,’ and in the face of the state’s insistence that these activities are justified and justifiably secret. In this sense, the fact that he challenged the prerogatives of the state itself, makes his alleged ‘crime’ so much more transgressive than, for example, merely lying to Congress about weapons of mass destruction, starting a war with a random nation in which tens of thousands die, or torturing rendered persons. None of these latter crimes are a threat to the state itself, and for that reason may be readily forgiven and forgotten.  Manning and Snowden are, however, ‘great criminals’ in that their actions embarrassed and undermined state power.  They can never be forgiven or forgotten.

So, for a significant portion of the public, there seems to be an–open or perhaps grudging…admiration of Snowden because he has dared to challenge the state’s monopoly on violence. He challenges the state even as he acknowledges that the state will use every resource at its disposal to exact its revenge. We know from the tragic example of Aaron Schwartz that challenging the Department of Justice will require endless resources, from millions of dollars of legal know-how and the filing of endless FOIA requests. We know from the example of John Kiriakou that even going through formal channels of whistleblowing—including being

 

“the first CIA officer to call waterboarding “torture”; to reveal that the CIA’s torture program was policy rather than a few rogue agents; and to say it was wrong”

 

will not stop the state, even a state led by a “transformative presidency,” from making sure that no one disturbs its monopoly on violence.

In this case, therefore, the violence of which present-day law is seeking in all areas of activity to deprive the individual appears really threatening, and arouses even in defeat the sympathy of the mass against law. By what function violence can with reason seem so threatening to law, and be so feared by it, must be especially evident where its application, even in the present legal system, is still permissible.

What makes Snowden so interesting is that it appears that he is an old-fashioned “believer” in the American project—someone who wanted to fight the good fight, to uphold American principles and ideals, as the US government has long professed is also its mission. He contracted to work for defense contractors who in turn worked with the NSA, and for that reason did not begin his (short-lived) post-military career with misgivings about the American imperial project. As he got to see the how its affairs were being misconducted, he continued to believe in “doing the right thing.”  What also makes Snowden remarkable is his awareness that

[T]he “US Persons” protection in general is a distraction from the power and danger of this system. Suspicionless surveillance does not become okay simply because it’s only victimizing 95% of the world instead of 100%. Our founders did not write that “We hold these Truths to be self-evident, that all US Persons are created equal.

Whether or not one agrees with his actions, whether or not his politics and ideology mesh with the ideas of the right or the left–it will always be a remarkable sight to a see a lone person stand up to the Leviathan, composed as it is of its myriad eyes, all watching, waiting, to clamp down on any threat, no matter how trivial to it relentless monopolistic pursuit of violence—and power.

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This piece was republished in Salon on June 19, 2013 as “Edward Snowden’s real crime: Humiliating the state.”

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Heaping Insult on Injury: Bill Keller’s Character Assassination of Bradley Manning

On Monday, New York Times columnist and editor Bill Keller made a number of troubling, distracting points in his column about Pfc Bradley Manning’s Pre-trial statement, which included some serious morally laden—and ungrounded–condemnations. Keller’s position is fairly condemnable itself, given that he works for a newspaper that has been on record as cooperating with maintaining government secrecy on multiple occasions.

1)     Keller points out that Manning said he left a voice message for the Times but never heard back. From this, Keller insinuates that Manning was somehow incompetent and wasn’t able to get his message to the editors—something that thousands of Times readers do everyday.

It’s puzzling to me that a skilled techie capable of managing one of the most monumental leaks ever couldn’t figure out how to get an e-mail or phone message to an editor or a reporter at The Times.

First, it’s not clear what being a ‘skilled techie’ has to do with leaving a voicemail. The two, needless to say, are unconnected. Keller’s response doesn’t squash doubts in my mind that the Bradley may have successfully left a message, only to have it ignored or deleted for any number of reasons: Perhaps because a) the NYT staff found it seemed too outlandish to be true; b) there was incompetence on the part of the staff whose job it was to check the messages; or they decided it was a hoax or unimportant; c) the NYT may have decided to deny receipt of the message in order to stay out of the fray. We know that the Times has had a history of cooperating with the US in protecting state secrets. We saw one glaring example of this under Keller’s own watch, in a story admitting that the Times sat on a story for over a year about how the US was illegally wiretapping American citizens.

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

It is still unclear how much of that story would have endangered national security, and how much of it was a cover-up for a crime conducted under the Bush Administration.

2)     That fact again raises doubts about Keller’s confidence that if the Times had received information, they would have sifted it carefully and published information that they felt was important for the public to know. We see the repeated collaboration on the part of the NYT with the US government—which often at odds with an American public’s interest. The latest example of this was seen in the speculative, often speculative or unfounded story published in last Sunday’s NYT about the deaths of Anwar Al-Awlaki, his son Abdulrahman, and his colleague Samir Khan, which several journalists suggest are at odds with known details. Much of that story was confirmed primarily—and only–by government sources, and challenged at many points by detailed investigative independent journalist Marcy Wheeler.

3)     Keller assassinates Manning’s character by using Manning’s self-description as

“emotionally fractured” — a gay man in an institution not hospitable to gays, fragile, lonely, a little pleased with his own cleverness, a little vague about his motives,”

as a vehicle by which to raise doubts about the importance or integrity of Manning’s intentions in wanting to share the classified documents with world—given that, as Keller says, Manning’s own explanation was inchoate.* I don’t see why Keller has to comment on Manning’s emotional state which, for someone who most likely knows he’s about to get into a massive amount of trouble, isn’t surprising. One doesn’t need to be an articulate ethics professor in order to know the difference between what is indisputably ethically troubling and what is not. Further, as Nathan Fuller pointed out to Keller in response to his initial column, in fact, Manning had extremely detailed and eloquent objections to the corruption and military practices that he saw.

Regardless, as Keller states, at his sentencing statement—after many years in solitary confinement, during which Manning has much time—if not many hospitable circumstances– to reflect, he makes clear that he is troubled by the dehumanization of the casualties in one military attack captured on video, where the US soldiers who perpetuated the attack cheered at the large number of casualities that they managed to engender.  That statement is consistent with his earlier actions and perspective, to say the least.

4)    Finally, in order to show that the NYT has no obligation to with support–either a whistleblower or– treasonous ‘enemy’ of the state, Keller refers to Max Frankel, who was The Times’s Washington bureau chief during the Daniel Ellsberg’s leaking of the Pentagon Papers. According to Frankel:

“[Ellsberg] was committing an act of civil disobedience and presumably knew that required accepting the punishment. We were privately pleased that the prosecution overreached and failed, but we did not consider ourselves his partner in any way.

But isn’t that precisely the ethical and deceptively neutral stance that journalists such as Nathan Fuller, Kevin Gosztola, Glenn Greenwald, and others are challenging?  If you’re a journalist—and that means anything to you—it means reporting to the public—even, especially, at risk of pissing off the state. And that means standing with your sources and ensuring that they are not targeted or persecuted for sharing important information with the Fourth Estate. That requires public support for information-sharing.

This should be the rule for journalists, especially when there may be concerns about criminal activities on the part of the state. Protect your sources, support them, and report on harassment, corruption and wrongdoing.  Such a stance would be ‘truly’ neutral, because it would ensure allegiances to its public readership, and promote trust by showing its adversarial, watchdog–not lapdog–stance toward the state.

5)     Keller suggests that Manning ‘pilfered’ documents. That suggests that Manning was stealing property that is owned by the government. In fact, this is precisely the issue that is at stake regarding Manning’s actions. As such, Keller is begging the question (i.e., assuming the very thing that is being questioned).

Did Manning steal? Or did he release documents that the state wanted to be kept secret for “national security” reasons–which are unconvincing to many, many people, including former whistleblowers, journalists, and a segment of the American population.  In many people’s understanding of a liberal democratic state—a government is accountable to its people. If this is the case, then a government’s actions must be made known to it people.

If we accept the latter explanation which, barring an actual state of emergency, is the only Constitutional one, another interpretation of Manning’s actions is NOT that he was stealing, but rather attempting to share evidence of state corruption and wrongdoing with Americans—those people to whom the US government is accountable. That would make him by most accounts except for those who are concerned about having wrongdoing exposed—a whistleblower.

6)    Finally, as whistleblower Daniel Ellsberg stated yesterday, there is a misconception about the kind of material that Bradley Manning leaked. In his letter, Ellsberg clarifies Manning WAS selective in the information he leaked. From Ellsberg’s statement on the Manning recorded statement, released today:

“MANNING WAS DISCRIMINATING

Critics have alleged that a major difference between my case and Manning’s is that I was discriminating in what I leaked, while Manning wasn’t. He just dumped some material that doesn’t need to be out, they say. This is simply false.

First, it’s important to point out most of the material he put out was unclassified. The rest was classified ‘secret,’ which is relatively low level. All of the Pentagon Papers was classified top secret.

But in a fact no one seems to observe from his statement, Manning was working within a “SCIF,” which stands for Sensitive Compartmented Information Facility. To get into a SCIF, a soldier needs a clearance higher than top secret. This means he had access to the highest classified material, such as communications and signals intelligence. This means he could’ve put out information top secret and higher, and purposely chose not to do so.”

Especially in light of Ellsberg’s point, Keller’s statement seems disingenuous at best, and self (and employer-) serving as well. But the set of terms that Keller deploys to refer to Manning–a ‘geek,’ ‘fragile gay man’ (how is his sexuality relevant?), “nervous, troubled, angry young Army private,” and in effect, a thief, suggests a character assassination more than a clarifying explanation of the NYT role in this affair.  Neither courageous nor morally upstanding on the part of Keller. And not surprising.

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*Since I first wrote this piece, independent journalists such as Nathan Fuller, Kevin Gosztola, and Greg Mitchell have published challenges to Kellers’ assessment of Manning’s motivations. I have revised to include some of their points; my assessement overlaps at points with theirs.

The Whistleblower Protection Act: Which ‘Disinterested Observer’ Gets to Decide?*

Update (below).

Yesterday, POTUS signed a touted “Whistleblower Protection Enhancement Act” which was passed unanimously by the Senate. Relatively short, it appears to strengthen protections against government-led retaliatory acts against government employees who report some evidence of wrongdoing.  On the face of it, it looks as if it leans in a positive direction towards creating space for raising complaints of ethical violations.

And indeed most media stories, from the New York Times to the WSJ blog reported it the same way. As the NYT described:

Capping a 13-year effort by supporters of whistle-blower rights, the new law closes loopholes created by court rulings, which removed protections for federal whistle-blowers. One loophole specified that whistle-blowers were only protected when they were the first to report misconduct.

Truthdig had a slightly more critical take, wondering how this would help Bradley Manning.

Really. A new bill to protect whistleblowers. Let’s take a look (pdf of bill here).

There is a curiously worded section that seems to speak to the same ambiguities that are under dispute in the situations of multiple whistleblowers—most notably Bradley Manning and John Kiriakou, among others.  In Section 102, after a series of clarifications about the range of evidence that an employee “disclosure” can include, there is a description what a disclosure “does not include.”

On the face of it, this exemption to protected disclosures sounds right. Administrators at any organization make discretionary judgments, and it is an obstacle to question discretionary policy decisions unless there is a compelling reason—like a violation of a rule or law or regulation—to object.  But the wording is interesting: it exempts communications of those disclosures. It exempts leaks unless there is a reason to believe that it evidences a violation of law.

So how are we supposed to know whether it does or doesn’t show a violation of law?

Section 103 tells us that the determination will be made by someone (a Senate Committee?) determining whether a disinterested observer who has access to all the facts would “reasonably conclude” that the disclosure evidenced a violation of a rule or law.

Again, in light of most urgent whistleblower prosecution underway, namely the military trial of Bradley Manning, it’s hard to know whether this bill creates new protective measures or assumes the very question that’s at stake:

Communications that show immoral conduct or unethical policies will be determined to be unlawful leaks—precisely because the gap between immorality and illegality is miles and miles long.

Judging from the last 11 years of US prosecutions of whistleblowers, communications regarding the torture of countless human beings who are assumed to be terrorists, or footage of dropping bombs on civilians who are trying to rescue their families from US attacks—will not show evidence of illegality—even when they show heinous, horrific, evidence of immorality.

The “ideal” disinterested observer, judging from the last 11 years of U.S policies, appears to be similar to the  Neoclassicals’ Homo Economicus: a rational agent who acts purely out of self-interest (which counts as objective action), doesn’t bring “ideology” into his calculations, and somehow often has near complete knowledge.

In other words, the ideal disinterested observer is close to impossible—unless it is someone who sides utterly with the official objectives of US national intelligence and foreign policy.

And sure enough, for the current Administration (and tragically, for any future “electable” Administration), only unmitigated hawks who have complete and uncritical faith in the way the lines of “national security” have been drawn—will count as disinterested observers. Seriously, does Congress want to tell us that it is likely that the US will view these communications through the lens of Medea Benjamin or Jameel Jaffer or Jeremy Scahill? Please. Much more likely, that it will be through the “disinterested” lens of Joshua Foust, Glen Beck, or Ann Coulter.

A disinterested observer who reasonably concludes, i.e. who would interpret that a communication evidences a violation of law qua the US Constitution, will NEVER–under this Administration–be the model for deciding that a classified email or memo or US national intelligence footage of bombs dropping on civilians—is immoral, and therefore constitutes a violation of (human rights) law.

The immediate objection that a Rightwinger or Obamabot will give (as disinterested observers) is that the Constitution can’t be the basis by which to determine that an email or memo or video footage violated a law or a rule—because the Constitution contains principles and not “rules” or “laws.” And therein lies the rub. The gap between immorality and illegality will be closed through the emphasis on rules. Rules. Convenient when persecuting whistleblowers. Not so much when organizing procedural trials, as Kevin Gosztola or Nathan Fuller will tell you.

So Congress and POTUS are probably feeling incredible jubilant and gratified.  Why not? They have managed to re-invent the same dreadful immoral wheel of persecuting whistleblowers while pretending that they’ve made advances in protecting them.

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Update: Also, here is Jesselyn Radack’s analysis of the WPEA. She is also quite critical of it, but on different grounds.

*Revised Title