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Markkula Center for Applied Ethics

On Snowden, Civil Disobedience



Snowden in the presidential campaign

Irina Raicu

During the recent Democratic presidential debate, when asked for her views about Edward Snowden, Hilary Clinton replied that “he could have been a whistleblower. He could have gotten all of the protections of being a whistleblower. He could have raised all the issues that he has raised. And I think there would have been a positive response to that."

She repeated that claim during at least one campaign event afterward, even though, by then, several reports had deemed it either outright false or, in the case of Politifact, cautiously, “Mostly False.”In the New Yorker, John Cassidi was more direct: “Hilary Clinton Is Wrong about Edward Snowden.” As he explains, there is a whistleblower protection statute that applies to federal employees but not to those in the intelligence agencies, and there is a statute that provides a path for intelligence agency employees to report certain matters to Congress, but which provides no protection to those doing the reporting. Politifact and others have pointed, in addition, to an Executive Order signed by President Obama, which purports to expand whistleblower protections to intelligence agency employees but not to contractors like Snowden. President Obama himself cited a policy directive that he said applied in Snowden’s case, but the National Whistleblowers Center, in a 2013 post analyzing that directive, concluded that it

fails to provide protection for whistleblowers and creates bad precedent. The Directive has already been used effectively by the White House to create an illusion that intelligence agency whistleblowers have rights and creates a pretext to oppose effective Congressional action to enact an actual law that would protect intelligence community employees.

And all of the analyses note that there are no whistleblower exceptions that would have protected Snowden from criminal prosecution. Snowden’s case is often compared to that of NSA employee Thomas Drake (who did face a prosecution later described by the judge in the case as “unconscionable”)—but that comparison is never raised by those who argue that Snowden could have taken advantage of whistleblower protections and chose not to.

Given the maze of statutes and executive orders and policy directives relevant to the claim about whistleblower protection, it’s easy to understand that laypeople’s eyes might glaze over at protracted exegesis of that issue. But a presidential candidate who is also a lawyer doesn’t have that excuse—especially when analyses debunking that claim have been appearing for years.

It’s telling that the debate about the ethics of Snowden’s actions continues, now making its way into the presidential campaign. Back in early 2014, my colleague David DeCosse (the director of the Campus Ethics program at the Markkula Center for Applied Ethics) organized an event titled “Conscience, Edward Snowden, and the Internet: Has Civil Disobedience Gone Too Far?” David and I both spoke at that event, and our comments were followed by lots of questions and comments from the audience gathered at SCU. (David later also wrote a piece on that topic, titled “Edward Snowden and the Moral Worth of Civil Disobedience,” which was published in the Religion and Ethics Newsweekly.)

As you can see in this summary of the event, David and I agreed on some things and disagreed on many others. Like Clinton, David argued that Snowden should not have fled the U.S., or should have come back to face the legal consequences of his actions. In his essay, David praises Dr. Martin Luther King, Jr.’s “conviction that all those engaging in civil disobedience must be willing to accept legal punishment for their actions. At bottom, this concern was a way to reaffirm the value of the law in itself. Moreover,” David argues, “submitting to such punishment was also a way to affirm by word and deed the moral good of the political community.”

Is there another question that should be asked, however, before we assert that the ethical course of action, for a person involved in civil disobedience, is to submit to the punishment that the law allots for his/her actions? Should we first ask about the fairness and proportionality of the punishment involved? Are those considerations completely irrelevant to an assessment of the ethics of the decision to blow the whistle and flee? Because, under the Espionage Act (the law under which Snowden has been charged, as he knew he would be), Snowden could face the death penalty or life in prison. What happens when civil disobedience poses a stark choice between martyrdom and no action? In addition, the Espionage Act does not include an ethical balancing test. It makes no exceptions for whistleblowers—for their intent, for the magnitude of the public good that may be achieved through their disclosures, or for the lack of more protective law-abiding ways for whistleblowers to inform the public (or at least some portion of the government outside of the Executive branch). In the eyes of that law, someone like Snowden is exactly the same as someone who would sell national secrets for private gain. Because the law has no whistleblower exception, defendants convicted in recent trials under the Espionage Act have not been allowed to even mention their motives at trial. Is this ethical?

If we decide that the definition of civil disobedience includes the requirement that those who break the law must submit to the punishment imposed by the law, without questioning the morality of the process or of the punishment involved, then Snowden’s actions don’t constitute civil disobedience. That, however, doesn’t change the fact that he could not have “gotten all of the protections of being a whistleblower.” To continue to assert that, as Hilary Clinton and others seem willing to do, is to subvert, through misinformation, the important conversation that we should continue to have about both the ethics of Snowden’s choices and the ethics of our own laws. The “moral good of the political community” (as David DeCosse put it) demands an evaluation of both.

Oct 23, 2015

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