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Sunday, August 2, 2015

Snowden Leaks Proved State Cannot be Restrained Without Disobedience

[Published at the Center for a Stateless Society, Aug. 1, 2015]

The Obama Administration finally responded earlier this week to a two-year-old petition on requesting the pardon of Edward Snowden. 170,000 signatures and a wave of anti-NSA public anger later, the White House formally refused to pardon the leaker, citing the alleged, unspecified damage his actions did to national security.

The petition response made no mention of any type of public service Snowden may have accomplished, particularly in the wake of the May 7, 2015 federal appeals court ruling that the telephone metadata program the president has repeatedly defended is in fact illegal. But the reality Snowden's leak exposed is that the growth of state power cannot be constrained—even by normal legal means—without assistance from extra-legal measures.

The intelligence apparatus had not only hid behind the secrecy of its surveillance capabilities; it tried to protect itself from scrutiny by claiming that any substantive information released to a court would damage national security interests. It even claimed that it couldn't explain exactly why or how this damage would occur... without defining what exactly “national security” means or why it trumps civil liberties.

We're fortunate the Court of Appeals saw through this argument. However, it likely never would have heard the case if not for Snowden's heroic act of what the White House's response sneeringly called “civil disobedience.”

The government's obstructiveness with the justice system has already created problems for plaintiffs trying to keep their information private and fighting for some semblance of Fourth Amendment privacy in the U.S. According to the ACLU:

By a vote of 5–4, the Supreme Court held that the plaintiffs in the [Clapper v. Amnesty International, 2013] case lacked standing to challenge the constitutionality of the FAA. Specifically, the Court reasoned that the plaintiffs had not shown that they had been injured by FAA surveillance, because they couldn’t establish a sufficient likelihood that their communications were being monitored under the statute. The plaintiffs couldn’t make that showing, because the government had refused to disclose, even in the most general terms, how the statute was being used.

That case was decided just before the Snowden leaks, but the decision may have just signaled a broader shift in judicial opinion on secret surveillance programs could be in the works. The Circuit Court determined in ACLU v. Clapper that the Snowden leaks provided valuable new information:

The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information.

According to Sen. Ron Wyden: “Now that this program is finally being examined in the sunlight, the Executive Branch’s claims about its legality and effectiveness are crumbling.”

Without leaks such as Snowden's, public review of sweeping, and intrusive government policies may not be fully realized. This particular case shows that the architecture of democracy may in fact be crumbling as a result of advances in technologies that can grant states enormous power to acquire information secretly.

All states expand their authority as a result of internal and external pressures, among them the battle for information supremacy. Logically, if knowledge is power, then more knowledge is more power. That expansion progresses toward the end goal of absolute authority. The progression may be constrained by different factors including the democratic process, competition with other states, and technological restrictions. But due to its competitive nature, it must always press forward.

In light of the ruling, we should consider that the state's ability to expand its surveillance power in secret may have outstripped the ability of the democratic or legal processes to properly restrain it. In short, we may be at the outset of a new era, one in which information acquisition can be accomplished so rapidly, so efficiently, that lumbering, deliberative, and arcane processes like elections, legislation and even the court system may be at a permanent disadvantage against the rapidly developing power of what some experts call the “deep state,” a network of secretive government agencies and their corporate partners that form the clandestine security apparatus.

This suggests that such an “illegal” action as Snowden's leak is not only permissible if properly focused, but essential to the cause of justice and limiting of coercive government powers.

Leakers and their journalist allies can provide a bulwark against state power expansion regardless of which government happens to be the offender. We should assume that a lack of transparency broadly means they are all offenders, and are guilty until forced transparency proves otherwise.

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