Before the report of President Obama’s independent task force to review the National Security Agency’s aggregation of every bit of metadata generated, there were two working assumptions. First, given that Obama hand-picked his task force, it would return a report that mirrored his proposals for reform, which largely had to do with the color of the wallpaper at the NSA and more infomercials like the 60 Minutes exposé by masterful shill John Miller.
Sure, Mr. Obama thanked his panel for making 46 recommendations to restore the rule of law and constitutional principles to government surveillance activities. (The number alone casts a bad light on the president’s repeated claims that there really was nothing wrong with surveillance policy.) And he promised to review those ideas and let us know next month which, if any, he intends to follow.
But Mr. Obama has had plenty of time to consider this issue, and the only specific thing he said on the panel’s proposals was that it might be a good idea to let communications companies keep the data on phone calls and emails rather than store them in the vast government databases that could be easily abused. But he raised doubts about such a plan, and he left the impression that he sees this issue as basically a question of public relations and public perception.
Even those who were damn near certain the report would turn out to be a sham were impressed. This comes on the heels of a decision by Judge Richard Leon that the NSA’s conduct is almost certainly unconstitutional, and as revealed yesterday, the Justice Department’s concession to release the secret FISC opinion authorizing the seizures under Section 215 of the USA PATRIOT Act.
In its latest filing, the Justice Department explained the reason for its initial reluctance to have the opinion published: It relates to the subject of an FBI counterterrorism investigation. Some information in the opinion could tip off the subject or his associates, the Justice Department said.
“However, upon review and as a discretionary matter,” the government said, it decided to drop its objection to the court publishing parts of the opinion, as long as they’re not classified and don’t jeopardize the investigation.
This has been a long fight by the ACLU, and coincidentally (as EFF’s Jim Tyre pointed out) comes right after Judge Leon’s scathing opinion. Things are happening. Not without resistance, particularly from our audacious and hopeful President, but they are happening nonetheless.
That the NSA’s program overreached to an extent unimaginable is part of the problem. That the program was performed under a cloak of secrecy which precluded any meaningful challenge was another part of the problem. That our government, spanning both parties and with the most sincere embrace of officials who are certain they are doing what they must to protect us, because the American people are too foolish and infantile to decide where along the spectrum of security and freedom they want their government to be, has decided to forsake the Constitution for our own good, is very much a part of the problem.
And then there is Edward Snowden. Traitor? Sure. Hero? Maybe. A guy with problems? Definitely. But without Edward Snowden’s revelations, there would be no discussion, no challenge, no vast public reaction to learning that the metadata from grandma’s phone calls are right there with the terrorists. If there are terrorists.
Without Edward Snowden, we wouldn’t know to be outraged. We wouldn’t even know to be slightly miffed. We wouldn’t be in a position to raise questions. And while it’s unclear that the American public has been sufficiently moved to take the position that they will not tolerate the NSA’s spying on our own, a concept that has always been anathema to Americans, there is no longer any question that Americans now question whether our government is engaged in a terrible affront to the Constitution.
This is huge. This doesn’t happen easily or often, and it’s happening. Like it or not, it’s happening because of Edward Snowden.
Whether there will be statues built of him, or elementary schools named after him, remains to be seen. It’s not likely. But in this age of faux disruptors, there stands a real one who has moved a government, if not all governments, and the public they theoretically exist to serve, to face the fact that the lies, the duplicity, the evisceration of privacy, all done with putative good intent for our own safety, to face its conduct.
For those who believe that the need for security is so dire that it trumps constitutional rights, Snowden will forever be a traitor, and should hang from a rope. For those who believe no government has the authority to secretly undermine constitutional rights because it believes it knows what’s best (or, if you’re particularly cynical, to extend its power and control), then Snowden, for better or worse, did what had to be done.
He may be no hero, but what Edward Snowden has put in motion may be the most significant disruption in the government’s abuse of constitutional freedoms since the World War II internment of Japanese. And at least we knew about that. For that, Snowden gets the deep appreciation of a freedom-loving people, even if he never gets a prize.