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.)
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.
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.
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.)
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.