If Edward Snowden shouldn't be punished for violating the Espionage Act, then what spy can we punish?
Edward Snowden, 29, a former CIA technical assistant and current employee of military contractor Booz Allen Hamilton, went to the Guardian and the Washington Post newspapers and spilled national security secrets that he had promised not to divulge. U.S. Ambassador John Bolton puts that effort in the proper perspective:
Number one, this man is a liar. He took an oath to keep the secrets that were shared with him so he could do his job. He said said he would not disclose them, and he lied. Number two, he lied because he thinks he's smarter and has a higher morality than the rest of us. This guy thinks he has a higher morality, that he can see clearer than other 299-million 999-thousand 999 of us, and therefore he can do what he wants. I say that is the worst form of treason.
Those who consider Snowden a "hero" might want to consider two other realities as well. First, he clearly violated the Espionage Act. If he isn't punished for doing so, then the act is utterly toothless. Second, contrast his behavior with that of Benghazi witness Gregory Hicks. Hicks endured the crucible of appearing before Congress and giving testimony about possible State Department improprieties that could ruin him. He didn't run to a newspaper, then run to Hong Kong and then vanish.
Or possibly defect.
Former CIA case officer Bob Baer told CNN that intelligence officials were speculating that Snowden may be part of a Chinese espionage case. “On the face of it, it looks like [Hong Kong] is under some sort of Chinese control, especially with the president meeting the premier today,” Baer said. “You have to ask what’s going on. China is not a friendly country and every aspect of that country is controlled. So why Hong Kong? Why didn’t he go to Sweden? Or, if he really wanted to make a statement, he should have done it on Capitol Hill.”
Baer also noted the convenient timing of Snowden's revelation. It followed a weekend summit between Barack Obama and Chinese President Xi Jinping, during which the issue of cyber security remained unresolved. “It almost seems to me that this was a pointed affront to the United States on the day the president is meeting the Chinese leader,” Baer speculated, “telling us, listen, quit complaining about espionage and getting on the Internet and our hacking. You are doing the same thing.”
Unfortunately, in the wake of this obviously egregious security breach and possible Chinese meddling, a number of Republicans are more interested in bringing the hammer down on Obama than on Snowden. Sen. Rand Paul (R-KY) has been on the fore of this wrongheaded approach. "I'm going to be asking all the Internet providers and all of the phone companies: ask your customers to join me in a class action lawsuit," he told Fox News' Chris Wallace. "If we get ten million Americans saying we don't want our phone records looked at, then maybe someone will wake up and something will change in Washington."
Other Republicans are equally misguided. They have joined Rep. Zoe Lofgren (D-CA), signing a letter to the FBI and NSA impugning the programs. Rep. Justin Amash (R-MI), who has adopted the libertarian outlook of former Rep. Ron Paul, explained their rationale. “You’ll find a lot of names [on the letter] of people who were recently elected,” Amash said. “We’re not tied to the Bush administration's policies, which were also wrong."
In reality, the controversy surrounding the NSA necessitates a serious discussion, apart from both the media-driven hysteria and the partisan politics that inform much of it. There is little question our nation still faces the kind of threat manifested on 9/11. There is no question one of the federal government's primary functions is to provide for the national defense. Yet as Andrew McCarthy explained at National Review Online, there are two "inseparable issues" that must be reconciled in the process: the government's seemingly limitless ability to gather information -- and how much trust Americans should place in government officials to do it within the confines of the rule of law.
As revealed respectively by the Guardian and the Washington Post via Snowden, the government has been collecting "metadata" from phone companies and Internet servers in order to detect patterns that may reveal burgeoning threats against the nation, which might otherwise go unnoticed. This metadata does not include content, and thus, it does not fall under the auspices of Fourth Amendment protection.
In a previous article on the subject, McCarthy likens the difference between metadata and content as the difference between an envelope containing an address, which is available for anyone to see, and the content of the letter contained in that envelope, which is private. With respect to obtaining the information contained in a letter, or the content of our conversations, several Supreme Court precedents have established that Americans have a reasonable expectation of privacy, unless there is "probable cause" the information will contain proof of a crime.
For those who worry that the Constitution is being violated, there is a further distinction that must be made as well. Before information that is collected to detect a pattern can be sifted for the sake of surveillance, the NSA must convince a court that there is sufficient reason for doing so. In the case of the NSA, the Foreign Intelligence Surveillance Act (FISA) Court is the one that decides whether a case has merit. In order to protect Americans, it has been established that all intelligence-gathering on Americans must be disclosed, and that which has been wrongfully amassed must be destroyed.
Due to the efforts of Sen. Ron Wyden (D-OR), the Office of the Director of National Intelligence was forced to admit that on at least one occasion, the government carried out an unreasonable search. Yet more importantly, it also admitted that the government "has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached the same conclusion."
This brings us to the other issue highlighted by McCarthy. For Americans to be satisfied that such a program will not be abused, a certain level of trust must be cultivated among the public by government officials.
In that regard, the Obama administration has been an unmitigated disaster. As the American Spectator's Jed Babbin points out, this administration is mired in scandals. He noted "only" five, including the IRS targeting of conservative groups and the pleading of the Fifth Amendment (to avoid self-incrimination) by the overseer of this abuse; Eric Holder's ostensible perjury for denying any connection to the seizure of a Fox News reporter's records, despite his approval of the search warrant involved; several administration officials using fictitious email accounts to avoid government record-keeping laws; and the impropriety of Obama's assertion of executive privilege to protect Holder in the Fast and Furious gunrunning scandal.
This is to say nothing of the Benghazi lies, Health Secretary Kathleen Sebelius's suspect
Furthermore, in an exchange directly related to the issue, Director of National Intelligence James Clapper told a bald-faced lie during a March 12 hearing of the Senate Select Committee on Intelligence. Wyden asked Clapper, "Does the NSA collect any kind of data at all on millions or hundreds of millions of Americans?" "No, sir," Clapper answered. "It does not?" Wyden asked again. "Not wittingly," said Clapper. "There are cases where they could, inadvertently, perhaps…"
There is also another breach of trust by this administration that cannot be ignored. Despite the massive amount of information the government is capable of gathering, the Tsarnaev brothers were still able to perpetrate a terrorist attack in Boston, even as the intelligence community had Russian intel on Tamerlan Tsarnaev. Terrorists were able to kill four Americans in Benghazi on the anniversary of September 11. Maj. Nidal Hasan was able to kill 13 and wound 32 of his fellow soldiers at Fort Hood, despite the fact that military officials were aware of his increasing radicalization and his exchanges with Anwar Awlaki.
The common thread? Political correctness and willful blindness. National Review's Mark Steyn illuminates the insanity:
How did all these Tsarnaevs-in-waiting wind up living in the United States? They were let in by the government, and many of them were let in in the years since 9/11, when we were supposedly on permanent "orange alert." The same bureaucracy that takes the terror threat so seriously that it needs the phone and Internet records of hundreds of millions of law-abiding persons would never dream of doing a little more pre-screening in its immigration system --by, say, according a graduate of a Yemeni madrassah a little more scrutiny than a Slovene or Fijian...The ID three of the 9/11 hijackers acquired in the 7-Eleven parking lot in Falls Church, Virginia and used to board the plane that day is part of a vast ongoing subversion of American sovereignty with which many states and so-called “sanctuary cities” actively collude...As for Major Hasan, who needs surveillance? He put "Soldier of Allah" on his business card and gave a PowerPoint presentation to his military colleagues on what he’d like to do to infidels--and nobody said a word, lest they got tied up in sensitivity-training hell for six months.
Thus, Americans are caught in a vise. No one wants a repeat of 9/11, or even the Boston Marathon bombings, but this administration has squandered the trust of the public, and demonstrated their contempt for the Constitution so often and so thoroughly, that Americans may choose, as McCarthy puts it, "to slash the powers we need" rather than "the officials we don’t" -- and we may live to "regret it."
In other words, we must separate political gamesmanship from national security.
This shouldn't be as difficult as it sounds. We are up against an enemy for whom the term "collateral damage," as in the killing of innocents, is an utterly foreign concept. Nor are they constrained by anything resembling the MAD doctrine that kept the Cold War from escalating to nuclear exchanges. If terrorists could detonate a nuke in an American city, they would undoubtedly do it for the sake of jihad. Americans intuitively understand this reality. But the commander-in-chief has confused and convoluted the issue. Accentuating his own hypocrisy, though he once assailed Bush overreach and decried government "fishing expeditions," Obama has maintained and expanded most of the previous administration's national security protocols. A president loses all credibility with the public when he attacks his draconian predecessor, avers that the war on terror is over, and yet doubles down on the effective programs he both demonizes and secretly agrees are proper and necessary.
And while many Republicans have been quick to demonize the Obama administration's efforts, such a campaign -- while emotionally satisfying on a number of levels -- may be counterproductive. As McCarthy and several others have noted, the current controversy would have barely resonated if it had been brought up nationwide on September 12, 2001, or in Boston on April 15 of this year.
It is likely such a possibility will be completely dismissed by those who see the NSA revelations in absolute terms, both on the Left and the Right. But what is needed is the balance that must be found between protecting American lives and protecting their rights. Part of that balance could be achieved by taking the Islamic nature of the threat far more seriously than the Obama administration does now. That alone would diminish the need for the level of all-encompassing surveillance we currently fear.
However, much of the anger surrounding this issue is still based on the reality that this administration is full of dishonorable people, easily capable of elevating political correctness and partisanship above the safety of Americans. In short, they have broken any bond of trust they might have had with the American public. That includes Edward Snowden, who, despite all his self-aggrandizement, has revealed himself to be nothing more than a traitor who should be prosecuted to the fullest extent of the law. Absent trust, Americans will remain contemptuous of virtually any efforts made by the NSA to protect them, perhaps even to the point of self-endangerment. If that reality isn't the worst one engendered by this administration, one would be hard-pressed to imagine what is.
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