Edward Snowden's Leaks Were Better Than Wikileaks — But He Should Still Go To Jail

snowdenPhotos of Edward Snowden, a contractor at the National Security Agency (NSA), and U.S. President Barack Obama are printed on the front pages of local English and Chinese newspapers in Hong Kong in this illustration photo June 11, 2013.

I endorse most of Josh Marshall’s post expressing ambivalence about Edward Snowden, as distinct from Bradley Manning, who was clearly a bad actor, if you believe charges filed against him.

My evaluations are based on the same premise as Marshall’s: America’s conduct of intelligence collection and foreign policy is broadly a good thing, though the government is overreaching in some places.

This can justify strategic leaks that are specifically aimed at pushing back the overreach. It does not justify any leak simply because it undermines our foreign operations.

Manning fails that justification test, and Snowden may pass it.

Snowden has a couple of big things going for him in arguing that his leak was morally right. His leaks (at least, those that have become public to date) regard broad public policies, not specific operations. And they are targeted to matters that are of broad public concern and that the public is likely to find objectionable.

He is fostering a valuable public debate that we wouldn’t be having without his leaks. That’s very different from Manning, who did a data dump containing a handful of useful nuggets of information amidst a vast sea of information that should have been kept private.

But for a few reasons, that’s probably not good enough for me to say Snowden deserves to get off the hook.

First, we don’t know what else Snowden leaked. We do know that the Guardian and the Washington Post have declined, so far, to publish certain information that he gave them. Perhaps other components of Snowden’s leaks are more damaging to national security and less relevant to the public debate.

Second, even if what Snowden did was morally right, he should probably be tried and sent to jail. Letting people get away with illegal leaks, even justified ones, will encourage more leaking — and most of the leaks that are encouraged won’t be justified. Snowden may have made the right judgment here, but we shouldn’t be encouraging people with security clearances to take declassification decisions into their own hands.

My hope is that leakers in possession of information that really needs to be public will decide, as Snowden did, that it is worth taking the risk of punishment. Actually excusing them from punishment will tilt the balance too far away from control of sensitive information.

Finally, a few related thoughts:

  • I don’t understand the argument that if Snowden really thought he was justified he wouldn’t have fled the country. The framework being applied here seems to be that Snowden was engaged in “civil disobedience” and that accepting your punishment is a key part of civil disobedience. But it seems to me that the justification of Snowden’s actions, if there is one, was simply that the disclosures he made were in the public interest. If he was acting for the benefit of the public, isn’t he entitled to try to avoid being jailed as a result?
  • If President Obama wants the press and public to buy into the idea that leaks are a really bad thing, he should commit to improving our system of classification and declassification, so the government keeps fewer unnecessary secrets. I wrote last week about options for improvement, including the creation of a steering committee sought by Sen. Jeanne Shaheen (D-N.H.) and the Public Interest Declassification Board. Yesterday, National Security Council spokeswoman Caitlyn Hayden told me by email that “Options for the creation of a senior level group are currently being considered.”
  • I couldn’t be less interested in the “Is Edward Snowden a hero?” question. The more this discussion is about the impact of his actions on the public and the less it is about his moral worth, the better.

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