Edward Snowden: A Modern-Day Daniel Ellsberg, Except for One Key Difference

It's still unclear whether the NSA's spying was actually illegal

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Edward Snowden is being called a lot of things right now. A heroic whistle-blower. A betrayer of his country. A modern-day Daniel Ellsberg. That last one — likening him to the famous leaker of the Pentagon Papers who is credited with helping turn public opinion against the Vietnam War — may be the most spot-on, because the Snowden and Ellsberg cases raise the same question: Where is the line between principled whistle-blowing and disloyal leaking?

Snowden, a former CIA staffer, released bombshell revelations about vast National Security Agency (NSA) surveillance because, he said, “the public needs to decide whether these programs and policies are right or wrong.” In a stunning move, Snowden outed himself, declaring: “I am not going to hide.” (He is, however, apparently seeking political asylum to escape prosecution.)

(MORE: Edward Snowden Hides in Hong Kong, but May Not Escape Reach of U.S.)

Snowden’s defenders have rushed to brand him a hero, comparing him to Ellsberg. Ellsberg himself told the Daily Beast that “I think there has not been a more significant or helpful leak or unauthorized disclosure in American history ever … and that definitely includes the Pentagon Papers.” Former Justice Department lawyer Jesselyn Radack argues that Snowden should be protected by a federal whistle-blower statute, since he “said very clearly … that he was doing this to serve a public purpose.”

Snowden’s critics are defending the surveillance program — they say it helped thwart a 2009 plot to bomb the New York City subway, and other terrorist threats — and they are demanding that he be charged under the Espionage Act. Republican Peter King, chairman of the House Homeland Security Subcommittee, said that if Snowden “did in fact leak the NSA data as he claims, the United States government must prosecute him to the fullest extent of the law.” The Justice Department says it is looking into bringing charges.

(MORE: Four Things to Know About Surveillance Leaker Edward Snowden)

It is tempting to think that the calls for Snowden to be prosecuted and put away for years are a product of these post–Sept. 11 times, and that we no longer have the respect for principled whistle-blowers that we had in Ellsberg’s day. But many people forget that after the Supreme Court ruled that the New York Times could publish the Pentagon Papers, Ellsberg was prosecuted under the Espionage Act and faced up to 115 years in prison. Charges were only dropped after revelations of extensive government misconduct in putting together the case.

(MORE: Read TIME’s Cover Story on the Pentagon Papers)

But there is a significant difference between Ellsberg and Snowden. The Pentagon Papers revealed that the government had ramped up the war in Vietnam and lied to Congress and the public about it, which is clearly wrong. But in Snowden’s case, it’s still unclear whether the NSA’s spying was in fact legal and if what Snowden did was simply leak classified information because he objects to how the government has chosen to defend national security. If the surveillance was legal, Snowden could still look like a conscientious objector, breaking the law because of his own moral imperatives, but he might not look like a whistle-blower. (Snowden’s defenders argue that the NSA’s spying goes beyond what the law allows.)

(MORE: Read the 1971 TIME Cover Story on Daniel Ellsberg)

Ellsberg is also widely regarded as a hero today because history moved his way. There is general agreement now that it was high time we pulled out of Vietnam — and that there was little real damage to national security from the release of the Pentagon Papers. The more it appears that what the NSA has been doing is wrong, the more Snowden will look like a whistle-blower. History’s verdict on Snowden will turn on whether he got the balance right: whether it turned out that we were more at risk of becoming a surveillance state than we were of terrorism.

MORE: PRISM by the Numbers: A Guide to the Government’s Secret Internet Data-Mining Program

77 comments
drudown
drudown

Gee, maybe this underscores why the Bush Administration officials should be prosecuted for VIOLATING the BIll of Rights, i.e., by creating this monstrosity, it only created Diplomatic problems and these "alleged issues" that (drumroll, please) no doubt the NSA will contend make its adherence to LAWFUL State Action more problematic. 

SHUT IT DOWN, for God's sake. 

As an aside, the "paid for" media's entire conceptual approach to analyzing the threshold issues discussed erroneously implies that the Bill of Rights and Due Process do not circumscribe the NSA's conduct in the first instance. They make it sound as if this some "dance" between the Congress and Supreme Court precedent interpreting the individual's injury-in-fact- say, a person's 4th Amendment's right to not have his/her emails searched and seized under the Bill of Rights. 

By such strained logic, the Congress can just "do what it wants" with no regard to the Supreme Law of the Land. That is the point of the INALIENABLE RIGHTS under the Constitution. The State CANNOT "take it away". Sorry, that is just more "law according to the Decider and his Foreign Puppeteer." It turns our entire government on its head. And no, 9/11 or any other CRIMINAL act in the future in the alleged "name" of jihad won't take it away either.

The NSA program is ILLEGAL and those that PUT IT INTO PLACE violated the LAW. Period.

What, such refusal to bring the most fundamental PROTECTIONS of our Founding Fathers' system of checks and balances within the three separate branches of government not a "deprivation" of life, liberty or property? [see, Davidson v. Cannon (1986) 474 U.S. 344]

Get real.

As for the shopworn exculpatory drivel that, gee, public officials were "screaming" for the Patriot Act….it was not used to even investigate the actual CAUSE of attacks, just like Iraq was attacked instead of the Saudis that funded and orchestrated the criminal acts on 9/11. There is no such thing as "terrorist crimes". That too- this bogus notion of "terrorist scienter" was solely the Bush Administration's doing. What, the felony murder on 9/11 was "different" if done with a geopolitical motive? That is nonsensical gibberish. The mere intent to do the act is enough. Here, the Bush Administration USED the "purported threat" of the then "mysterious" terrorist threat to justify SUBVERTING our system of precedent and as "justification" to "change our way of life" when LESS ONEROUS MEANS are available.

Blow the actual culprits to smithereens instead of trying to blow up the 4th Amendment and Bill of Rights.

“There are times when even justice brings harm with it.” - Sophocles

Bluhorizon
Bluhorizon

It appears that the question of who is the criminal is mainly in the mind of Mr. Cohen, who wrote this article.  For the rest of us, it's pretty clear that the most massive breach of our constitutional rights ever exposed has just occurred and we need to act to bring these criminals, who include the president, the leadership of the NSA and the kangaroo judges of their kangaroo court to justice.

As for Mr. Snowden, we all know he broke the law.  He is a criminal.  We have had to deal with similar criminals in the past, people and groups who have conspired against us.  Among them are groups which would have had the full attention of our spymasters had data mining been available then. These were all serious criminals who broke the law and many of them ended up in jail because of their crimes: 

 Lucy Stone, Susan B. Anthony--members of the criminal National Women's Rights Convention who conspired to foment passage of the 19th amendment—many members spent time in jail and were abused while incarcerated; Religious Society of Friends (Quakers), Congregationalists, Wesleyans, and Reformed Presbyterians, all criminal groups who aided and abetted in the theft of property, specifically, slaves.  

These religious fanatics threatened the security of the United States and were instrumental in causing rioting and civil unrest resulting in civil war.  Today, they would certainly be candidates for loss of habeas corpus, arrest, incarceration without a charge or an attorney indefinite detention and maybe torture.  

So, when it comes to criminals perhaps it is best to attache the penalty to the nature of the crime.  Mr. Snowden, our criminal du jour will probably look more like another famous criminal, Paul Revere, who also incited insurrection and did not wait to send it to committee.  Good luck Mr. Snowden.  By being so brave you have made us all braver and better--let's not let him down.

brandonsfilecabinet
brandonsfilecabinet

The National Security Agency (NSA) leaker should have kept his mouth shut. He should have remained Loyal to his Obligations and to his Oaths to keep information secret. And he should have remained Loyal to Our Government. Our Government helps protect US. -- Brandon Katrena

nicholas.epson
nicholas.epson

Recent developments in lawful intercept (LI) technology has been a topic I’ve been following for a while. Learning about companies creating technology to assist authorities, like Voip-Pal.com, by providing a backdoor to monitor people at will seems more unethical as time passes. Now that the cat is out of the bag with PRISM, finding answers to questions about projects like Solar Wind and DCSNet may be necessary to find out exactly who has been labeled a “person of interest” and most importantly, how this information is being used. The whole situation has everyone uneasy – I don’t think anyone read The Giver and thought the dystopian society imagined by Lois Lowery to be a nice way of life.

The subject of lawful (or legal intercept) seems to be developing because actions taken by Voip-Pal who owns the company Digifonica and Microsoft.

http://www.whichvoip.com/blog/further-developments-on-voip-pal-coms-lawful-intercept.html

You can read details behind the actual patent by following the link below. Pay close attention to heading [0005].

http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=/netahtml/PTO/srchnum.html&r=1&f=G&l=50&s1=20100150138.PGNR.

The DCSNet hasn’t surfaced in the news for a long a while, but it’s worth reading, especially if it is active and does what the author describes in this article.

http://www.wired.com/politics/security/news/2007/08/wiretap

ShamsAci
ShamsAci

The question arises whether US surveillance practices had gone too far or whistleblower Edward Snowden's sensational leaking of an Internet surveillance program is wrong or right. - A.R.Shams's Reflection

PaulArts
PaulArts

For me as an European it's baffling to see how the right wingers raise hell over a rational judicial interpretation of the second amendment and don't bat an eye when the government eavesdrops all citizens, good or ad permanently. In the Manning case you could at least plea that there's hypothetical risk for national security. History will surely

CobraCrodegangoTenenticiello
CobraCrodegangoTenenticiello

It might well be that PRISM and NSA are illegal and Snowden is right. But this can only be ascertained through a regular, public and fair trial before an U.S. court, where Snowden would speak his reasons and show, if possible, that he is right and innocent. This would provide the intire issue with the transparency Snowden advocates for.

Hiding in China will not help the search for truth. Gandhi or other great civil protesters who practiced disobedience did not flee from the law.

JeffBurdick
JeffBurdick

Is it too much to hope for the NSA to be prosecuted as a stalker and required to stay 1,000 feet away from the American people? As usual, the funny FluffingtonPost has a slightly different take. Enjoy: http://bit.ly/108wafK


arthdenton
arthdenton

You guys ARE familiar with the 4th Amendment to the US Constitution? It's part of the so-called "bill of rights"? Well... if you accept the US Constitution as the so-called "law of the land" then how can you possibly doubt that the NSA's taking in everybody's emails, phone conversations, pictures, downloads and so-forth were not a gross violation of the so-called Constitution?

Seriously.

BruceStrong
BruceStrong

President Obama is not only continuing Bush's spy policies, he is EXPANDING them !@#@!!! Look at PRISM... by the way FIRE this Clapper person, better yet start tracking HIS movements...  Ever heard of the Bill of Rights! Clapper also said that the insight provided by these programs has "led to successful efforts to mitigate" terrorist threats. Question, does he mean the Boston bombings... What has this US spying program "... mitigated...", Clapper? Oh right it's a secret US surveillance program directed at people living in the USA !@##@!!! Wow, I feel safer already!

"When governments fear the people there is liberty. When the people fear the government there is tyranny."  — Thomas Jefferson


elmer0224
elmer0224

Good thing I'm an average citizen. I'm just another face in the crowd. Even if the government listens to all my calls, they won't get anything out of it :)

fmoolten
fmoolten

I'm inclined to support the NSA surveillance program as a probable protection against lethal terrorist actions that encroaches only minimally on our privacy rights.  Despite some comments here, individuals can't be investigated under the program without gaining court permission by showing probable cause - only patterns of telephone communications are exempt from the probable cause requirement, not the identification and investigation of individuals.  The Fourth Amendment doesn't appear to be in jeopardy.


However, my support is tentative enough for me to welcome evidence that I have underestimated the threat to our liberties.  In particular, can anyone describe a very specific danger that my private activities will be investigated in the absence of evidence they are relevant to public safety?  I don't think it's sufficient here to generalize with statements about "snooping" or "spying".  What would be a very concrete example of an intrusion unjustified by the type of suspicion that has always justified a judicial warrant for further investigation since the early days of our republic?  I would add that a search warrant requires only probable cause and not proof, and that seems to be the case now as it has always been.

In any case, I also believe that we deserve more evidence on the extent to which the program has (or has not) succeeded in protecting our lives. That protection has been claimed, and seems plausible, but we need more details before accepting even minimal intrusions on our privacy.


JohnDunn
JohnDunn

Running from the Leader of the Free World to seek freedom in China?  Is the irony lost on anyone?  1st Amendment talks about free speech.  I kind of think speech under surveilance has lost it's free aspect.  This is not rocket science debate, Googe. 

GalacticCannibal
GalacticCannibal

In the Land of the Free (so-called) . Would you expect your Gov to spy on their people's private phone calls and internet use 7/24, which is a unconstitutional act.. If you would , then you can toss the US Constitution into the trash bin....And welcome in the BIG Brother State. BEWARE fellow Americans.


Thank you Edward Snowden for exposing this electronic abuse by our Gov.. of the US Constitution 4th. Amend. 

andycharleswilson
andycharleswilson

This just proves the US is amazing at intelligence gathering! So amazing in fact, that it let's one of their own operatives (who apparently has leaked "top secret" information) get on a plane to Honk Konk! Did they monitor his e-mails and phone calls? Obviously not! Ooops!

vdelprete
vdelprete

Obama clearly lied about it. Google Obama 2007 speech spying.

blastthebums
blastthebums

Both repukes and dems in congress, Snowden is traitor.

kritt
kritt

You are only classified as a whistleblower if you expose illegal activity-- but the activity that Snowden exposed is legal altho controversial.  There is congressional oversight over these programs.  If, Americans are unhappy with how they work, they should contact their congressman or woman

brink7070
brink7070

@elmer0224 I can't sleep, so here I am on the internet counting people like you.  If "the government" wanted to use NSA capabilities for inappropriate activities, how do you suppose they might do that?  Or do you simply trust them not to?  I suggest you do some research on government abuses of the Patriot Act thus far, friend. Open your eyes.

arthdenton
arthdenton

@elmer0224 The typical "I got nothing to hide" nonsense. The other 'explanations' or excuses include 'Bush started it', 'they do it for our own good, to keep us safe', and so forth. The truth is that we get the government we deserve. We decided to trade promised 'safety' by paying for it with our freedoms and liberties and, as Franklin predicted, we are getting NONE.

cryofreezer
cryofreezer

@elmer0224 Yes, we should all put our own interest above our Country.  You have nothing to worry about, it's just America that is under attack by tyrants so why should you care?

DeweySayenoff
DeweySayenoff

@fmoolten Inasmuch as you have a well reasoned argument, I'd argue that any revelation of successes in the past (at least in the detail you seem to be seeking) would undermine any future efforts to find and stop threats to national security.

 Of necessity, secrecy must be maintained in order to collect as much data on the intentions and plans of those who seek to harm the United States or her allies.

What seems to be missing from the equation is how does one go about finding threats to the U.S. in the first place?  This isn't a movie or TV show that's all scripted out.  They don't know who the bad guy is.  All the evidence collected doesn't lead directly to the bad guys.  In fact, the overwhelming majority of it leads nowhere.  And some of that may be my data or your data or someone else's data.  Irrelevant things are tossed or ignored.

There's TOO MUCH DATA to be persecuting individuals for the hell of it.  And I imagine (though would like assurances and proof) that abusing the powers they have for reasons other than national security are severely punished.  The most telling things about the legitimacy of this program is how the "normal" representatives (that is, the ones who have been around long enough to understand how national security REALLY works and don't take their cues from re-runs of CSI or 24) are closing the political ideological gap and saying these programs are necessary and vital.  High-powered, long-term REPUBLICANS who have taken shot after shot at the President on everything from tax reform to abortion have said the president did the right thing to keep these programs running.

That kind of political unity is damn rare these days. 

So legal or not, I don't really care.  It's not like the information they're accessing can't be accessed easily and readily by anyone with a court order or can't be hacked by someone without one.  Either way, it's going to happen.  You can either be raped quietly and learn to get on with your life of you can rail against the inevitable and have a miserable existence.

DeweySayenoff
DeweySayenoff

@GalacticCannibal The fourth amendment guarantees against unreasonable search and seizure without due process.  Due process is observed by obtaining a warrant through a secret court so as not to tip off those who are using that form of communication that they are being monitored.  Blanked access is based on the technical detail of finding people who are actually planning bad things against the United States.

After all, they don't go around with a sign over their heads saying "I'm a bad guy, monitor me!" like the cameras basically do for people who appear on CSI or 24.

Beyond that, it's on you.  These programs were detailed in the Patriot Act.  If you choose not to read them, that's your fault.  Representatives and Senators (those with a clue, that is) on both sides of the political spectrum have defended these programs, and the President's use of them.  If you don't like it, I suggest you move to a country without Internet or cell phones, because I expect, legally or not, they all do it.

But your assertion that this was an abuse of the constitution was 100% wrong.  It's simply your ignorance in not looking at publicly available information in the first place.

kritt
kritt

@GalacticCannibal You do realize that having phone record data is different than eavesdropping??

roknsteve
roknsteve

@GalacticCannibal Go talk to Bush & Cheney-they started it and go talk to Congress-they voted  to renew it.  Start with John McCain.

kritt
kritt

@vdelprete If the program is classified, then that is justified-- otherwise he would be vilified for revealing classified information. Its amazing how many people are this naive

MaryGoode
MaryGoode

@OldNassau Really-if things are so great here, then why does Snowden feel he cannot come home, unlike Ellsberg? -Answer: Our weak willed lily livered power hungry Congress Critters won't back him up and protect his rights if it means jettisoning the heretofore unheard of power of the US to spy on its own citizens, the vast majority of which do not and have not committed any crime, without a warrant.  The only reason why Nixon got his ass canned was because there were people willing to stand up to him. Bravo, Edward-for holding up an OLD tradition!

kritt
kritt

@OldNassau I agree-- this is a sign that we have not crossed over into totalitarianism-- democracy is very messy and hard to defend because we are an open society that is constantly battling the balance of the public good and our rights to privacy

curt3rd
curt3rd

If, Americans are unhappy with how they work, they should contact their congressman or woman

How can Americans complain about something that they dont know exist because it is classified.

allison.aa
allison.aa

@kritt If the records of any American citizens were seized in the absence of an individual probable cause warrant, the act was illegal.

pato
pato

@krittThe 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

fmoolten
fmoolten

@DeweySayenoff @fmoolten Dewey - We don't really disagree about the extent of detail that would be acceptable.  If credible individuals were to state that multiple attacks were thwarted during a specified interval because of timely evidence from the surveillance, without names, places, or dates, and if the descriptions were confirmed by members of the Intelligence Committees, I would be content.  We've seen a little of that, but I'd welcome more, and from more than a single reputable source.  Since Snowden's disclosure has already told our enemies that the program existed, that kind of revelation wouldn't tell them much more than they could already surmise.  If the secrecy hadn't already been compromised, there would be no justification for any revelations of course.

curt3rd
curt3rd

Obama signed the extension of the Patriot Act

MaryGoode
MaryGoode

@kritt @GalacticCannibal  That is not the point. The way the law is written, they COULD. Playing around with unalienable Human RIghts that even the UN agrees upon is not a step up for democracy, but a step down.

kritt
kritt

@curt3rd   It has been leaked-- so is no longer classified

kritt
kritt

@pato @kritt None of our constitutional rights are absolute--thus you cannot libel your neighbor, publish child pornography or buy a grenade launcher

kritt
kritt

@MaryGoode @kritt @GalacticCannibal Regardless, the Supreme Court has ruled that it is constitutional---- but the law is only supposed to give them access to your phone records NOT the content

allison.aa
allison.aa

@kritt@allison.aaClapper said a special court, Congress and the executive branch oversee the program and extensive procedures ensure the acquisition, retention and dissemination of data accidentally collected about Americans is kept to a minimum. Any collection of data about Americans is illegal absent probable cause. Making an international phone call, for example, is not probable cause!

The issue is whether NSA overstepped the bounds of what is lawful by collecting data on American citizens without a probable cause warrant. 

MaryGoode
MaryGoode

@kritt @pato And the second response to a people who gambled away their freedom for the sake of "security" is, "where did we go wrong; when did the people that swore to protect us become our jailers?"


Don't think it can happen?-Two words: Weimar Germany.

kritt
kritt

@pato The first response to any terrorist attack is always -- why didn't the government do more to prevent it

kritt
kritt

@pato Well you may be willing to risk another 9/11, but millions will disagree with you

pato
pato

And you have to balance the lives of generations of Americans who have fought and died to protect our Liberty and the Constitution with the potential for this practice to save future lives.  And ask yourself is there a better way to protect people than by short cutting the Constitution?

kritt
kritt

@pato @kritt We have no way of knowing if they could or not.  The Patriot Act expanded the rights of our government to intrude on our private data-- so it is legal

pato
pato

@kritt @pato Not if those attacks could have otherwise legally been prevented.

kritt
kritt

@pato @kritt If this information has been used to prevent attacks -- you need to balance that in with the potential loss of privacy

pato
pato

@kritt @pato People knew about this, but since it was classified it couldn't be discussed openly.  Now we can have the debate about protecting our system of government from these abuses.

kritt
kritt

@pato @kritt There are many classified programs that have been put in place to protect us-- it can be secret from the general public and still legal

pato
pato

@kritt @pato If this is such a non-secret then how is it classified?

kritt
kritt

@pato @kritt The information cannot be used without a warrant-- it is collected but cannot be accessed

kritt
kritt

@pato @kritt Where were you when the FISA regs were expanded to allow warrantless wiretapping about 8 years ago?

pato
pato

@kritt @pato But according to you the collection of every electronic record of every American without a constitutionally valid warrant is completely fine and dandy?