Law, Morality, and the Case of Edward Snowden

By Mark Tancredi
June 19, 2013

Now the front is flooded with correspondents and journalists. They record their 'observations' and gems of popular wisdom, and they visit the wounded and construct new theories about the people's soul. It's a new version of Dahl and just as bogus—linguistic graphomania, verbal incontinence. That's one type--and then there's the other: clipped speech, 'sketches and short scenes,' skepticism and misanthropy. I read a piece like that the other day: 'A gray day, like yesterday. Rain since morning slush. I look out of the window and see the road. Prisoners in an endless line. Wounded. A gun is firing. It fires today as yesterday, tomorrow as today and every day and every hour.' Isn't that subtle and witty! But what has he got against the gun? How odd to expect variety from a gun! Why doesn't he look at himself, shooting off the same sentences, commas, lists of facts day in, day out, keeping up his barrage of journalistic philanthropy as nimble as the jumping of a flea? Why can't he get it into his head that it 's for him to stop repeating himself--not for the gun--that you can never say something meaningful by accumulating absurdities in your notebook, that facts don't exist until man puts into them something of his own, a bit of free human genius—of myth.

- Boris Pasternak, Dr. Zhivago

When Americans of our day are awakened from their slumber and suddenly roused to ponder morality again, they characteristically do so by staking out another position of foolish comfort—that of the righteous moral critic. Able to shriek indignation at abuses but unable to see the situation for what it really is, they are as secure in blaming as they are protected from rebuke.

SnowdenOne mode in which Americans think of morality—when they think about it—is as 'legality,' and this in two related ways. First, they characteristically conceive of all moral rules as external constraints on their activity, constraints either necessary for the maintenance of social harmony or the prevention of misdeeds or constraints beneficial for efficiency and pleasantness. Morality, conceived this way, is a matter of force, a threat of sorts against what actions one pursues. The difference between 'can' and 'may' is a difference in obstacles to be overcome. Underlying this is a democratic attitude toward rules, which understands the authority of any moral claim on an individual as deriving essentially from that individual's having agreed to the moral claim, either freely or through broad coercion. And this is why moral rules are most often viewed as constraints: when I agree with the sanctioned avenues, public morality merely affirms my personal approach; but when I disagree with them, it appears as suspect, arbitrary, a decision made by someone else against me. Where authority is not from my will, so it would seem, it betrays only someone else's power. It's like the Tesla song "Signs": The sign says "Anybody caught trespassing will be shot on sight." / So I jumped the fence and yelled at the house "Hey! What gives you the right?"

We have trouble, in these disagreeing cases, in responding to moral rules. To see how, consider a second way Americans treat morality as legality: by equating moral debate with legal debate. Thus the court system in the United States becomes the forum for deciding all of our contentious moral issues, and legal remedies supplant discussion. This is true of stances on abortion as well as gay marriage, in both their conservative and liberal manifestations; both sides understand well that the game is to use the law to secure their positions, and this merely reinforces the impression among those in opposition to the law at the time that morality is an external imposition. Thus it should come as no surprise that when faced with a morally problematic situation, as when faced with an oft ill-regarded law, many Americans lapse either into a shaming conservatism that deems individuals unworthy (or ungrateful) who fail to live up to the law or into a grandstanding liberalism that deems the law unjust because individuals do not live up to it. The liberals see the conservatives as the grand inquisitors, themselves as the liberators; the conservatives see the liberals as the defectors and betrayers, themselves as the last brigade of defense.

Such is the case, it seems to me, with the recent responses to Edward Snowden, both from those hailing him as a hero and those condemning him as a traitor. Writing for The New Yorker, John Cassidy opines:

So what is Snowden's real crime? Like Ellsberg, Vanunu and Bradley Manning before him, he uncovered questionable activities that those in power would rather have kept secret.

And Jeffrey Toobin, in a somewhat ill-mannered counter-voice, writes:
[Snowden] is neither [a hero nor a whistle-blower]. He is, rather, a grandiose narcissist who deserves to be in prison.... [H]e wasn't blowing the whistle on anything illegal; he was exposing something that failed to meet his own standards of propriety. The question, of course, is whether the government can function when all of its employees (and contractors) can take it upon themselves to sabotage the programs they don't like.

[I]n an act that speaks more to his ego than his conscience, he threw the secrets he knew up in the air—and trusted, somehow, that good would come of it.

Cassidy and Toobin both target their ire by using the law as a reference point. On Cassidy's view, Snowden has performed a great public service by subverting legal strictures and secrecy to expose security policies to the American public. On Toobin's view, Snowden's betrayal is to be found in exactly that same act of subversion, that violation of legal strictures and secrecy. (Toobin emphasizes both the legality of the NSA's activity and the illegality of Snowden's.) But Cassidy and Toobin share more than a preoccupation with the law. They also share a view of Snowden as a man of his own making whose choices evince his own character, whether praiseworthy or loathsome. David Brooks, by contrast, casts Snowden as a type, a character growing all-too-familiar in the isolated streams of modern life that Brooks so temperately opposes. His Op-Ed title in The New York Times is misleading; "The Solitary Leaker" refers not to Snowden but to a moral-political type, and to Snowden only insofar as he is an instance of that type. He is Judas, not Judas. (Or perhaps better, he is Dr. Zhivago, not Dr. Zhivago.) So Brooks can write:
If you live a life unshaped by mediating institutions of civil society, perhaps it makes sense to see the world in a certain way... This lens makes you more likely to share the distinct strands of libertarianism that are blossoming in this fragmenting age: the deep suspicion of authority, the strong belief that hierarchies and organizations are suspect, the fervent devotion to transparency, the assumption that individual preference should be supreme. You're more likely to donate to the Ron Paul for president campaign, as Snowden did.

The rest of Brooks's piece more or less lists the specific ways Snowden failed in his obligations to the United States. It is a useful list. It makes concrete the extent to which all of us assume roles in our lives—in our work, in our families, in our communities—performance in which requires traits that we do not choose, traits set by the role. It also helps make obvious the extent to which each of us, in our moral reasoning as in our lives, is a product of our culture. Opposite this, Cassidy's and Toobin's pieces make clear the sway of conscience on one's performance in a role, a sway perhaps nowhere more severely felt in the United States than in the upper-echelons of the post-9/11 national security apparatus. (One would at least hope some discomfort is felt there.) But these three assessments of Snowden are all unsatisfactory precisely because they do not detail—and indeed, from their standpoints, cannot detail—real conflict between individual conscience and role. Why not? Because as far as conscience factors into these discussions at all, it is as an impartial surveyor, sworn to no one and able to pass judgment with infallibility. Conscience, in the moral mind of each of these columnists, stands to role in the same relationship that will and assent, in the moral minds of Americans, stand to moral and legal rules: accidental ally, intermittent foe. Conscience is not simply beckoned by an authority different from law, it is not beckoned by authority; it owes allegiance to nothing but its own passing, detached convictions. This is why it is so dangerous to Brooks, so reckless to Toobin, and so heroic to Cassidy.

Yet the way each one of these columnists writes—the way we Americans think—gives the impression that conscience is, in fact, more informed, that it's a player in the arena, not an idle viewer at the bar. Certainly Cassidy's piece rests on just such a belief; he would protest loudly against my characterization of what he takes to be heroism. But called to answer whether one's conscience could be wrong, Cassidy offers no standard by which to judge. Brooks's and Toobin's pieces less obviously depend on the dichotomy and illusion, but they nonetheless evince them. In Toobin's case, the characterization of Snowden as a narcissist is to the point.

Consider also Brooks:

Sometimes leakers have to leak. The information they possess is so grave that it demands they violate their oaths.

Or Cassidy again:
That's the valuable role that whistle-blowers play in a free society, and it's one that, in each individual case, should be weighed against the breach of trust they commit. In some instances, conceivably, the interests of the state should prevail. Here, though, the scales are clearly tipped in Snowden's favor.

Here our moral language suggests a standpoint somewhere beyond the law from which to appraise it. The language of weighing and tipping comforts by giving the impression that reason intervenes in these difficult times, but it obscures the fact that the authors (and by extension those that agree with them) lack any scales. Nowhere in these pieces does a reader find anything offering itself as a superior standard. Instead, we find personal emotions expressed in authoritative phrases. And in the absence of any criteria by which to judge Snowden's actions, moral outrage--both against the government and against its detractors--is just ornery infatuation. By what standard do we observe that information of a certain gravity is sufficient to justify violating an inviolable oath? How grave the offense? And how does one weigh a breach of trust against the value of whistle-blowing? How does one determine the value of whistle-blowing in the first place? Cassidy calmly contends that the scales are tipped in Snowden's favor: tipped by what?

Cassidy writes as though Snowden took action because of the facts of the matter (so his Daniel Ellsberg quote at the end of his article), but facts notoriously do not suggest their own application. What appears in Cassidy's own writing to have driven the leak—what appears more obviously to have driven the writing—is just emotive approval. Brooks writes as though once commitments are made, they cannot justifiably be broken. He provides little reassurance against obvious and ridiculous test cases by saying that they can be relinquished if one interrogates himself closely. It's unclear to me what this could mean, though I imagine it's something like having God speak directly to you, only you are God and have to go through your own internal monologue as a middleman. But without this assurance, however inadequate, Brooks's position is even more discomforting: morality is swallowed up by legality, and conscience is formed into obedience. Something like this emerges also in Toobin's piece, which displays an inappropriate level of trust in the American government to police itself. In gratuitous and unargued-for opposition to such trust, I submit this, which is indicative of most Obama Administration press conferences. One wonders how Brooks and Toobin could identify an unjust law; one wonders how Cassidy could identify a mole.

When the American who sees morality as external imposition meets the case of Edward Snowden, we get either Brooks/Toobin the conservative or Cassidy the liberal; we do not get morality. When the American who sees morality as an external imposition confronts the activities of the NSA, we get Edward Snowden.

It is difficult for me to see Snowden as either a hero or a traitor; it is difficult for me to see him as any different from most Americans, shifting uncomfortably at a large bureaucratic government but unable to articulate the discomfort or to stand back at sufficient distance to critique it. Equating morality with legality is a societal mental block, and it deprives Americans of a critical stance towards their laws. It leaves only one route of resistance: the highly individualized conscientious objector, whose claims are nothing to those who do not already accept them. I just think... I just feel... I don't approve... I don't want... Snowden—as he's been portrayed by the media, always an important caveat—seems to be this kind of American, the instantiation of a type that is highly individualized. He serves us as neither hero nor traitor because he does not point a way; he is a figure merely of protest.

Still, one more thing bears remarking. Since the United States' government embarked on its post-9/11 quest to find something that it views as beyond its legitimate authority, it has grown more secretive in its policies and more ad-hoc in its justifications thereof. And as this has happened, it has begun to seem--if it has not already seemed for a while--that the quest is never-ending. The story of America in the age of terrorism is partly a story of the actions for which 'national security' serves as a justification. This bewitchment of the American mind needs to be resisted. Not because national security is unimportant nor because there are not real threats to American safety, but because by debating such threats and our collective responses to them, Americans identify their common goods, their shared ideals, and their political commitments--the things which make for a healthy society and for courageous citizens. What the activity of the NSA illustrates is not just a breach of trust but also a breach of the relationship between the state and its citizens. And perhaps to the extent that the protest of which people like Snowden are parts contributes to this resistance and is sustained by their less-than-convincing acts of conscience, we may view them as courageous figures. Unfortunately, Snowden invites such a view only through tempered glass, for he gives us neither principle nor politics nor direction. What he gives us are merely facts, and it's an open question whether those amount to anything on their own.