Should Snowden Have Run Away?

Yesterday, Georgia Institute of Technology law
and ethics professor Peter Swire published an
op-ed in the Washington Post in which he tried to sort
through the “culture war” between spies and techies over how they
view Edward Snowden. My
views are pretty clear. What struck me was Swire’s assertion
that he would think better of Snowden had he chosen to go to jail
for making his revelations about unconstitutional domestic
surveillance by the National Security Agency. Swire writes:

After wrestling with the issue, I think that Snowden could have
been a conscientious objector — but he has thus far failed the
test. A central element of nonviolent dissent is to move society’s
conscience by taking personal responsibility. Mohandas Gandhi and
Martin Luther King Jr. went to jail for their beliefs, but Snowden
ran away.

Going to jail is, of course, a lot to ask of a person. But
Snowden knowingly set himself above the law, claiming a higher
morality. Full clemency, without any jail time, would create a bad
precedent in holding others in the intelligence community
accountable, should they break security rules.

The moral leadership and the sacrifices made by Gandhi and King
deserve our highest respect. Gandhi and King were imprisoned for
the crime of fighting for liberty. However, both men were able to

communicate with and guide their movements from their jail
cells. After being convicted of “sedition” in 1922, Gandhi was
sentenced to six years of imprisonment, of which he served two. The
known charges against Snowden could add up to 30 years in
prison.

Martin Luther King, Jr. was arrested 30
times. In 1960, he was sentenced to four months in prison for
participating in a lunch counter sit-in in Atlanta, Georgia. He was
quickly released after the intervention of then-presidential
candidate John F. Kennedy. Most famously in 1963, King was jailed
for eleven days in Birmingham, Alabama for protesting
government-mandated racial segregation. From his jail cell, King
composed one of the great documents of the civil rights movement,
The
Letter from Birmingham Jail.

Both the British Raj and the segregated South were brutal, but
their functionaries were not able to impose the sort of
totalitarian silencing that our current legal system enables with
regard to cloaking the
illegal activities of the surveillance state. Even now, the NSA
has stamped “top secret” its own “talking
points” outlining its claims against Snowden and refuses to
release them in response to a Freedom of Information Act request.
The liars
at the head of national surveillance state had blocked any way for
whistleblowers like Snowden to alert Congress and the public to
their violations of our constitutional rights.

Interestingly, Swire does not mention the much more relevant
civil disobedience case of Pentagon Papers leaker Daniel Ellsberg
who, like Snowden, was charged under the Espionage Act in 1971 and
could have been sentenced to 115 years in prison.

Ellsberg pointed out in a July, 2013 Washington Post
op-ed Snowden today would be imprisoned and held in
total isolation and incommunicado. His trial, when it would
occur, would be closed to the public on the excuse that an open
trial would harm national security. Ellsberg noted that he when he
was arrested and was immediately released on his personal
recognizance. That would not happen today. Instead, Ellsberg
writes: 

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 … incommunicado. … He would almost certainly be
confined in total isolation….

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.

Swire is wrong. Snowden deserves our admiration and support.