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The Case Against Clemency for Snowden Involves Prioritizing Secrecy ‘Oaths’ Over Truth-Telling

Dissecting Fred Kaplan’s Hit Piece on Edward Snowden

by KEVIN GOSZTOLA

A column on why former National Security Agency contractor Edward Snowden should not be granted clemency—and will not be given clemency—was written by Slate’s Fred Kaplan on January 3. It quickly became regarded as a sharp well-argued rebuttal to The New York Times’ editorial, which labeled Snowden a whistleblower and urged President Barack Obama to show him leniency so he could come back to the United States.

Former Times executive editor Bill Keller called it a “typically thoughtful and informed rebuttal.” Brian Fung, tech reporter for The Washington Post, said it was a “very measured and thorough essay on what now with Snowden. Also a good recap of the entire saga.” Matthew Kaminski and Mary Kissel, both members of The Wall Street Journal’s editorial board, found it to be excellent, as did Garance Franke-Ruta, a senior editor for The Atlantic.

What Kaplan was praised for arguing is the following: (1) if Snowden had only revealed NSA’s domestic surveillance, “leniency toward him might be worth discussing; (2) Snowden is no Pentagon Papers whistleblower Daniel Ellsberg; (3) Snowden signed an oath to not disclose classified information; (4) Snowden gave up hope for clemency when he turned for help from Hong Kong and Russia and praised Russia’s human rights record; and (5) Snowden did not commit treason, but “what did he do exactly, why did he do it and what consequences did his actions have?” (He then proceeds to offer questions prosecutors or senior officials should ask Snowden if they ever get to cross-examine or interview him.)

The column is an amalgamation of arguments recently pushed by The Washington Post columnist Ruth Marcus and advanced by CNN correspondent Jeffrey Toobin over the past months. There is not anything superb about what Kaplan presents except for how it morphs into an advice column for prosecutors and senior officials in the latter portion.

Why is any of the above misguided and not a “sharp” rebuttal to the case for clemency? Because the rebuttal is a product of a belief shared by many individuals in the US media that proudly violating one’s duty of secrecy and having no regrets is more criminal than the abuses or misconduct of the United States government. As Kaplan declared, “Snowden signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information, and knew the penalties for violating the oath.”

Kaplan believes it might have been better if Snowden had revealed only NSA “domestic surveillance” programs. Snowden actually has not revealed any “domestic surveillance” programs. But this disregards how Snowden was interested in exposing a global system of mass surveillance. Only exposing the bulk data collection program collecting Americans’ phone records or the existence of program collecting data from Americans’ internet communications would not have made it possible for Snowden to communicate to the world how pervasive NSA’s surveillance has become.

Legally speaking, it does not make a person more of a whistleblower because they release less information. US government attorneys would still argue—had he taken less information—that he was violating his secrecy agreement and deserved to be convicted of violating the Espionage Act. They also would have been able to take a look at the limited information he disclosed and claim, as President Barack Obama initially did, that it was all constitutional and legal. Exposing the programs was not justified because they were authorized by Congress and no court had found them unconstitutional.

It is additionally remarkable that Kaplan makes this statement about disclosures that are not clearly related to domestic surveillance of Americans:

These operations have nothing to do with domestic surveillance or even spying on allies. They are not illegal, improper, or (in the context of 21st-century international politics) immoral. Exposing such operations has nothing to do with “whistle-blowing.”

Examples provided are:

…the NSA’s interception of email traffic, mobile phone calls, and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls “worldwide,” an effort that (in the Post’s words) “allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.”

To Kaplan, none of the above is illegal, improper or immoral (note the caveat that some things are more moral now in the 21st Century than they were in previous centuries). CIA efforts in Pakistan, which have involved a “vaccine ruse” that has hurt the fight against polio, is not improper or immoral. Targeting and killing alleged terror suspects on a “kill list” away from any declared battlefield in Pakistan, Somalia or Yemen is entirely legal and moral. “Incidentally,” collecting cell phone location data from “tens of millions of Americans who travel abroad with their cellphones every year”—a result NSA officials can foresee but do nothing to stop—is legal and proper.

Issues Kaplan seems to have should also be directed at The Washington Post for engaging in investigative journalism. The newspaper consulted government officials and revised stories so they could be certain US national security, whatever that might mean, was not jeopardized, but apparently Kaplan does not think they did a good enough job of imposing limits on their right to publish.

Snowden has not praised Russia and its leaders’ human rights record. He has shown appreciation to President Vladimir Putin and other Russian officials for giving him temporary asylum and be willing to stand up to the US, which revoked his passport creating the situation where he was stuck in an airport in Moscow. Thus, the meaning Kaplan ascribes to a statement Snowden made to human rights attorneys in Russia is not what Kaplan makes it seem.

When Kaplan asks, “What did he do exactly, why did he do it, and what consequences did his actions have?”—and then proceeds to put forward speculation and mostly unconfirmed details about what Snowden did in Hong Kong and Russia, he deliberately ignores statements by journalist Glenn Greenwald, The Washington Post’s Barton Gellman, the ACLU’s Ben Wizner and the Government Accountability Project’s Jesselyn Radack. He ignores the statements Snowden made in communications with New York Times reporter James Risen.

Altogether, a believable record of events—why he did it as well as what he did not do—can be gleaned. If Kaplan does not believe any of it, he should have the guts to accuse Greenwald, Gellman, Wizner, or Radack of lying or fabricating details in Snowden’s story. He should have the guts to suggest that Risen failed to realize he was being duped by Snowden and much of what he published in his interview should not be accepted as truth.

Continuing, Kaplan argues, “Whistleblowers have large egos by nature, and there is no crime or shame in that. But one gasps at the megalomania and delusion in Snowden’s statements, and one can’t help but wonder if he is a dupe, a tool, or simply astonishingly naïve.” A whistleblower’s ego is no larger than the egos of individuals, who are given space on the Internet and in publications to push their viewpoints.

Whistleblowers have to be certain that what they are doing is the right thing to do because they know they are going to turn their life entirely upside down and the government will pursue them. (Of course, it is unclear if Kaplan empathizes at all with the plight of a whistleblower.)

Finally, like Marcus, Kaplan contends, “Many have likened Snowden’s actions to Daniel Ellsberg’s leaking of the Pentagon Papers. (Ellsberg himself has made the comparison.) But the Pentagon Papers were historical documents on how the United States got involved in the Vietnam War.”

“Ellsberg leaked them (after first taking them to several senators, who wanted nothing to do with them) in the hopes that their revelations would inspire pressure to end the war,” Kaplan adds. “It’s worth noting that he did not leak several volumes of the Papers dealing with ongoing peace talks. Nor did he leak anything about tactical operations. Nor did he go to North Vietnam and praise its leaders (as Snowden did in Russia).”

All of the material published so far has gone through the hands of journalists so the comment about “tactical operations” is unfounded—unless he wants to accuse The Guardian, The Washington Post, The New York Times and other media organizations of recklessness.

More significantly, it takes some arrogance to argue Snowden is not like Ellsberg, when Ellsberg himself has clearly articulated that what he did was similar and has the experience to make such assertions. Kaplan has no experience exposing government misconduct or wrongdoing so he would not understand what that entails or the risks it takes to reveal information that is in the public interest.

Arguing that Snowden should have given material to US senators first ignores the dynamic that exists in this country and makes it a virtual certainty that the information would never have been acted upon, even if given to sympathetic US senators like Mark Udall and Ron Wyden. They refused to disclose information on secret programs they found questionable because the information was classified.

Yes, the senators could have sought answers internally, but the specificity of questions might have led NSA to wonder if there was someone in the agency who was taking information to Congress. If Snowden was found to be responsible, his effort to challenge programs would have been shut down. The debate occurring on NSA surveillance would not have happened.

In the summer of 2013, Ellsberg had the following exchange on CNN with host Piers Morgan:

MORGAN: Let me ask you, Daniel Ellsberg, one of the criticisms about Edward Snowden is he fled America and went to Hong Kong. You didn’t. You stayed in America, and in the end, the charges against you did not lead to a prosecution. Should he have stayed –

ELLSBERG: Yes — Pardon me. Of course, I’m sorry, I don’t know how old you are, but I have to say I did face prosecution. I was facing 12 felony –

MORGAN: You weren’t — but the charges were dropped, right?

ELLSBERG: They were dropped because the president was, among other things, conducting warrantless wiretapping on which I was overheard and lying about it, by the way. Something that figured in his impeachment hearings that led to his resignation. Also, he sent people in my doctor’s office to get information with which to blackmail me into silence about more secrets about his own administration. And he’d sent people to incapacitate me totally, something that no one has really claimed the president had power to do until President Obama, actually, who does claim that power to do it again suspects –

MORGAN: So should Snowden –

ELLSBERG: — even American citizens anywhere in the world.

MORGAN: Should Snowden – right. Should Edward Snowden have stayed in America?

ELLSBERG: No, I think – first, I think he’s benefited very much — he’s benefited. He’s caused this debate, as you say, and I hope some real change and some real oversight. The oversight system in both Congress and the judiciary has been shown to be, by his own revelations, totally broken. But if he had stayed in this country, he would be where Bradley Manning has been for the last three years. At last he’s on trial. He spent 10-and-a-half months in solitary, some of it naked. Edward Snowden would be in that same cell or some other cell like it incommunicado.

I think he was very wise to be telling us this information from outside the country. It’s a different country from when I released this 40 years ago. Then I was out on bail for two years during that trial. And I was out on a $50,000 bond. I was able to explain what I had done and what I thought were the crimes revealed in that information. Which I –

MORGAN: Okay.

ELLSBERG: As a matter of fact, the things that were done against me to keep me silent were then all illegal, which was a matter of pride as an American. Now they have been made legal, but that doesn’t mean they are made constitutional. They were unconstitutional…

Perhaps, Ellsberg is unconvincing because Kaplan has a profound appreciation for all apparatuses and mechanisms of the national security state when they work “properly.” Maybe it is because he is a press fellow at the Council on Foreign Relations, a think tank of individuals that spend time pontificating on how best to advance, maintain and operate American empire and Snowden’s actions threaten US hegemony.

Or, let’s go back to this earlier referenced statement—”Snowden signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information, and knew the penalties for violating the oath.” This is what incenses columnists and/or pundits most: that he violated the sanctity of his top secret security clearance.

Toobin argued in June, “Any government employee or contractor is warned repeatedly that the unauthorized disclosure of classified information is a crime.” (Note: That is, unless you are taking government secrets for a book you are planning to write.)

In June 2013, MSNBC host Karen Finney articulated:

I can tell you when I worked in the Clinton administration, I had a top secret clearance. I took that as sacred. It bothers me. I’m very uncomfortable that this 29-year-old kid decided that it was OK to put this information out there…

Ellsberg has explained what happens to people in, as journalists William Arkin and Dana Priest have called it, “Top Secret America.”

The promise to keep “secrets of state,” once demanded and given, becomes virtually part of one’s core identity. In the national security apparatus, one’s pride and self-respect is founded in particular in the fact that one has been trusted to keep secrets in general and trusted with these particular secrets. Second, they reflect one’s confidence that one is “worthy” of this trust. Indeed, the trust (with respect to truly sensitive secrets, requiring utmost reliance on the discretion of the recipient) will have been “earned,” before being conferred, by a long history of secret-keeping, building habits that are hard to break, that form part of one’s character.

These habits will allow a good deal of leeway and discretion in disregarding formal rules of the classification system when it comes to sharing information with others who have not been explicitly authorized to receive it — even reporters who have not been formally cleared, in flat violation of the rules — when this is in the interest of furthering the policies or interests of one’s agency boss or the president.

Furthermore, according to Ellsberg, “Keeping information from foreign adversaries-the official rationale for the whole secrecy system-is actually a less salient consideration for the larger part of the classified material, especially that which is ‘only’ top secret or lower. Since foreign states neither control the agency’s budget nor do they vote in elections or in Congress, they are not the parties who must be excluded from much of the most ‘sensitive’ information.)”

And, “It is a fundamental truth that wrongful secret-keeping is the most widespread form of complicity in wrong-doing. It involves many more people both within and outside an organization that is acting wrongfully than those who give wrongful orders or who directly implement them, though it includes these.”

Snowden decided to give up a part of his “core identity.” The pride and self-respect that came with having access to secrets daily was given up forever. He violated trust so that he could show Americans it was wrong for so many to blindly trust in their own government. That is what upsets people like Kaplan.

As evidenced by the fact that not a word was written about rampant over-classification of information in government, it is clear that Kaplan has not fully considered how government secrecy creates a climate where whistleblowers should be even more valued. He does not recognize the legitimacy of whistleblowing to the press (and how that works in an age of the networked Fourth Estate). And, like many others in US media, he has an inappropriate level of faith in the secrecy system of the United States, a system which agencies in government (often with the help of the courts) abuse each and every day in order to keep matters of great public importance concealed from Americans.

Kevin Gosztola writes for Firedog Lake, where this essay originally appeared.