I’ve already given my instant verdict on Tuesday night’s Democratic debate: in terms of the horse race, Hillary Clinton was the clear winner, although Bernie Sanders also did pretty well. But it was a long discussion about serious issues, and some of the exchanges bear closer inspection—including the one about Edward Snowden, the former National Security Agency contractor who is currently languishing in Russia.
The exchange began with host Anderson Cooper asking Lincoln Chafee, a former governor of Rhode Island, “Governor Chafee: Edward Snowden, is he a traitor or a hero?” Chafee replied that he would bring Snowden home without forcing him to serve any jail time. “The American government was acting illegally,” he continued. “That’s what the federal courts have said; what Snowden did showed that the American government was acting illegally for the Fourth Amendment. So I would bring him home.”
Chafee was stating a truth. In May of this year, a three-judge panel at the U.S. Court of Appeals for the Second Circuit, in Manhattan, ruled that the N.S.A., in routinely collecting the phone records of millions of Americans—an intelligence program that Snowden exposed in 2013—broke the law of the land. The Patriot Act did not authorize the government to gather calling records in bulk, the judges said. “Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” the decision read. The ruling overturned one that had been handed down in December, 2013, in which a federal judge, William Pauley, said that the N.S.A.’s collection of metadata was legal.
After Chafee spoke, Cooper turned to Hillary Clinton and asked, “Secretary Clinton, hero or traitor?” Clinton, who earlier in the debate had described herself as “a progressive who likes to get things done,” replied, “He broke the laws of the United States. He could have been a whistle-blower. He could have gotten all of the protections of being a whistle-blower. He could have raised all the issues that he has raised. And I think there would have been a positive response to that.”
“Should he do jail time?” Cooper asked, to which Clinton replied, “In addition—in addition, he stole very important information that has unfortunately fallen into a lot of the wrong hands. So I don’t think he should be brought home without facing the music.”
From a civil-liberties perspective—and a factual perspective—Clinton’s answers were disturbing enough that they warrant parsing.
Did Snowden break the law? In passing classified information to reporters, he did. The Espionage Act explicitly prohibits such actions. But this violation surely needs to be balanced against the public service that Snowden carried out in informing the American public about the extent to which their government had been spying on them. “I think Snowden played a very important role in educating the American people to the degree in which our civil liberties and our constitutional rights are being undermined,” Bernie Sanders pointed out, immediately after Clinton spoke. “He did—he did break the law, and I think there should be a penalty to that. But I think what he did in educating us should be taken into consideration.”
Evidently, Clinton disagrees. In saying that Snowden should have invoked “all of the protections of being a whistle-blower,” she was repeating an argument that President Obama has made. But it doesn’t withstand inspection. The Whistleblower Protection Act of 1989, which provided legal immunity to government employers who reveal lawbreaking, malfeasance, or abuse of authority, doesn’t apply to employees of the intelligence agencies, including contractors like Snowden. These workers are covered by the 1998 Intelligence Community Whistleblower Protection Act; but, as, Michael German, a senior counsel at the American Civil Liberties Union, pointed out, in 2013, “it is no more than a trap.”
German explained that the 1998 act set up a procedure for employees of the intelligence agencies to report wrongdoing to Congress via the Department of Justice’s Office of the Inspector General. But the legislation didn’t fully protect whistle-blowers from internal reprisals or subsequent prosecutions. “Reporting internally through the ICWPA only identifies the whistleblowers, leaving them vulnerable to retaliation,” he noted. “The examples of former NSA official Thomas Drake, former House Intelligence Committee staffer Diane Roark and former CIA officer Sabrina De Sousa show [this] too well.” (In 2011, my colleague Jane Mayer wrote a long piece about Drake, who was charged under the Espionage Act.)
Finally, what about Clinton’s claim that some of the information Snowden took from the N.S.A. has “fallen into a lot of wrong hands”? The assertion echoed a report, published in June by the Sunday Times, which quoted anonymous officials in the British government who said that Russia and China had decrypted some of the files taken by Snowden, prompting MI6, the U.K.’s foreign-intelligence service, to pull agents out of several countries. At this stage, though, there has been absolutely no confirmation of this allegation, nor even that Russia or China obtained any of the classified material that Snowden accumulated. Snowden has said that he destroyed all of the documents he had in his possession before departing Hong Kong for Moscow. In an article querying the Sunday Times story, the Guardian’s Ewen MacAskill, one of the reporters who worked on the original Snowden revelations, wrote that it may reflect “a cack-handed attempt by some within the British security apparatus to try to take control of the narrative.”
That sounds about right, and it’s not clear why Clinton would want to associate herself with such an effort. Moreover, as Glenn Greenwald, another journalist who worked with Snowden, pointed out on Twitter: “It is ironic how Hillary used the same slimy innuendo against Snowden that’s been used for months about her emails.”
So what was Clinton up to? Perhaps she is such a pillar of establishment thinking, and of the national-security state, that she really believes what she said. Perhaps she was just using Snowden to burnish her credentials as a hawk and appeal to the American public at large, which is rather less sympathetic to Snowden than most progressives are. (In a recent poll carried out by the digital-media company Morning Consult, fifty-three per cent of respondents said that they would support a government prosecution of Snowden, and just twenty-six per cent said they would oppose such an action.)
Ultimately, speculating about motives doesn’t get us very far. The fact is that Clinton said what she said, and she said it unapologetically, just as she did in telling Cooper that she didn’t regret voting for the Patriot Act. At least some Democratic voters—those who take seriously the right to privacy established under the Fourth Amendment—will have been listening.
