The Snowden Case

David Bromwich
London Review of Books
July 4, 2013

Most Americans who know anything about the National Security Agency
probably got their mental picture of it from a 1998 thriller called Enemy of the
State
. A lawyer (Will Smith), swept up by mistake into the system of
total surveillance, suddenly finds his life turned upside down, his family
watched and harassed, his livelihood taken from him and the records of his
conduct altered and criminalised. He is saved by a retired NSA analyst (Gene
Hackman) who knows the organisation from innards to brains and hates
every cog and gear that drives it. This ally is a loner. He has pulled back his
way of life and associations to a minimum, and lives now in a desolate
building called The Jar, which he has proofed against spying and tricked out
with anti-listening armour, decoy-signal devices and advanced encryption-
ware. From his one-man fortress, he leads the hero to turn the tables on the
agency and to expose one of its larger malignant operations. Michael Hayden,
who became the director of the NSA in 1999, saw the movie and told his
workers they had an image problem: the agency had to change its ways and
inspire the trust of citizens. But in 2001 Hayden, like many other Americans,
underwent a galvanic change of consciousness and broke through to
the other side. In the new era, in order to fight a new enemy, he saw that
the United States must be equipped with a secret police as inquisitive and
capable as the police of a totalitarian state, though of course more scrupulous.
Gripped by the same fever and an appetite for power all his own, Dick
Cheney floated the idea of Total Information Awareness (soliciting Americans
to spy on their neighbours to fight terrorism), but found the country not
yet ready for it. So he took the project underground and executed it in secret.
Cheney issued the orders, his lawyer David Addington drew up the
rationale, and Hayden at NSA made the practical arrangements. Eventually
Cheney would appoint Hayden director of the CIA.

Americans caught our first glimpse of the possible scope of NSA operations
in December 2005 when the New York Times ran a story by James Risen and
Eric Lichtblau on massive warrantless surveillance: ‘Bush Lets US Spy on
Callers without Courts’. The government was demanding and getting from
the telecoms all the records it wanted of calls both to and from their
customers. But the feed had been deliberately routed around the court set up
by the Foreign Intelligence Surveillance Act to issue warrants for searches
of this kind. The Times, at the urging of the Bush White House, had held back
the story for a year, across the significant divide of the 2004 presidential
election. Even so, James Risen, who protected the source for his leak, was
threatened with prosecution by the Bush justice department, and under
Obama that threat has not been lifted. As a candidate in 2007 and early 2008,
Obama took an unconditional stand against data mining and warrantless
spying, which he softened, well before the election, into a broad commitment
to oversight of the existing programmes by the inspectors general of the
relevant departments and agencies. Over the past five years, Obama’s
reduction of the pledge to a practice had largely been taken on trust.

Such was the background of almost forgotten anxiety and suspended
expectation when, on 6 and 7 June, the Guardian struck with its stories on
US data mining and internet surveillance. The collection of ‘to’ and ‘from’
numbers and the duration of phone calls had, it turned out, not only
continued but expanded under Obama. The government reserves in storage
and taps (on occasion) the emails and internet activity of the customers
of nine major companies including Google, Apple and Microsoft. The major
difference from the Cheney machinery seems to be that general warrants
are now dealt out, rather than no warrants at all, but general warrants don’t
meet the requirement of ‘probable cause’ and the specification of the place
to be searched and items to be seized. The Bill of Rights wanted not to make
things too easy for the police. Now, on the contrary, the government gets
the data wholesale, secure in the knowledge that a gag order prevents the
corporate channels from speaking about the encroachment, and individual
targets are sealed off from any knowledge of how they are watched. A
lawlike complexion is given to the enterprise by the fact that the government
doesn’t itself go into personal records without the consent of the citizenry;
the records, instead, are held by private companies and then siphoned
off by the government under legal compulsion.

Our communicative doings may be likened to a fishpond stocked with both
actual and conjectural fish. The new protocol allows the government to
vacuum up the entire pond, while preserving a posture quite innocent of
trespass, since it means to do nothing with the contents just then. The test
comes when a discovery elsewhere calls up an answering glimmer of terror
or a terror-link from somewhere in your pond; at which point the already
indexed contents may be legally poured out, dissected and analysed, with
effects on the owner to be determined.

Edward Snowden made these discoveries, among others, while working as
an analyst for the CIA, the NSA and the security outfit Booz Allen Hamilton
(whose present vice chairman, Mike McConnell, is a former director of the
NSA). Imperialism has been defined as doing abroad what you would like to
do at home but can’t. Snowden, from the nature of his work, was made to
recognise with growing dismay that what American intelligence was doing
to terrorist suspects abroad it was also doing to 280 million unsuspecting
Americans. The surveillance-industrial complex has brought home the
intrusive techniques of a militarised empire, with its thousand bases and
special-ops forces garrisoned in scores of countries. It has enlarged itself at
home, obedient to the controlling appetite of an organism that believes
it must keep growing or die. Of course, the US government cannot do to
Americans what it does routinely to non-Americans. The key word in that
proposition, however, is government. In fact, the same government can do all
it likes with the data on American citizens, so long as it obtains a follow-up
warrant from the FISA court. This court is always in session but its
proceedings are secret; and qualified observers say it grants well over 99 per
cent of the warrants requested. There is therefore no point at which the
move by government from data collection to actual spying on citizens can
come under genuine oversight or be held accountable.

In ‘this our talking America’ (as Emerson called it), we prefer to talk about
personalities. It could be anticipated that the ‘leaker’ of NSA secrets, and not
the trespass by government against the people, would become the primary
subject of discussion once the authorities produced a name and a face.
He was destined to have his portrait fixed by the police and media, blurred
and smeared to look, in some vague way, probably psychopathic, and once
arrested to be dispatched to trial and prison. The Obama justice department,
under its attorney general Eric Holder, has in the last four years prosecuted
six ‘whistleblowers’ under the Espionage Act of 1917: twice the number
prosecuted by all previous administrations combined. Before he fled Hawaii
for Hong Kong, Snowden kept close watch on those prosecutions, and on
the treatment of Bradley Manning in the brig at Quantico and in his military
trial. Snowden resolved not to endure Manning’s fate. He would get
the story out in his own way, and would also describe his own motives as he
understood them, before the authorities published his image and tracked it
over with the standard markings of treachery and personal disorder. So the
first Guardian stories were followed, in the same week, by a twelve and a
half minute video interview of Snowden, shot by the documentary director
Laura Poitras.* The interviewer was Glenn Greenwald, a constitutional lawyer
as well as a Guardian columnist, whom Snowden had sought out and who, in
defiance of American journalistic etiquette, served as author or coauthor of
early Guardian stories from the NSA leaks. The principles that guided
Snowden’s thinking and something of his views could be inferred already
from his choice of Greenwald and Poitras as the persons to help convey his
story to the public.

I have now watched this interview several times, and have been impressed
by the calm and coherence of the mind it reveals. Snowden had looked
for ways of serving his country in the grim months after September 2001 (he
would have been 18 then). He joined the army, hoping to be taken on in
special forces, but broke both legs in a training accident and then dropped
out, disaffected with an anti-Arab racism in the mood which took him by
surprise. He had never finished high school but had no difficulty passing the
test for a diploma equivalent. Since his computer skills were prodigious
and easily recognised, he was an obvious candidate for well-paying security
work in the IT industry, and, by his mid-twenties, had worked his way to
the highest clearance for analysing secret data. At the same time he was
educating himself in the disagreeable facts of America’s War on Terror, and
the moral and legal implications of the national security state. He was
pressed by larger doubts the more he learned. Not all these particulars
emerged in the interview, but all could be inferred; and Snowden’s profile
differed from that of the spy or defector (which he was already charged
with being) in one conspicuous way. He did not think in secret. In
conversations with friends over the last few years, he made no effort to hide
the trouble of conscience that gnawed at him. It also seems to be true –
though in the interview he doesn’t clearly formulate the point – that even
as he went to work and made use of his privileged access, he felt a degree of
remorse at the superiority he enjoyed over ordinary citizens, any of whom
might be subject to exposure at any moment by the eye of the government
he worked for. The remorse (if this surmise is correct) came not from a
suspicion that he didn’t deserve the privilege, but from the conviction that
no one deserved it.

And yet, the drafters of the new laws, and the guardians of the secret
interpretation of those laws, do feel that they deserve the privilege; and
if you could ask them why, they would answer: because there are elections.
We, in America, now support a class of guardians who pass unchallenged
through a revolving door that at once separates and connects government
and the vast security apparatus that has sprung up in the last 12 years.
The cabinet officers and agency heads and company heads ‘move on’ but stay
the same, from NSA to CIA or from NSA to Booz Allen Hamilton; and to the
serious players, this seems a meritocracy without reproach and without peril.
After all, new people occasionally come in, and when they do they enter the
complex voluntarily. They do it often enough from unselfish motives at
first, and among the workforces of these various institutions you may find
Americans of every race, creed and colour.

Nothing like this system was anticipated or could possibly have been
admired by the framers of the constitutional democracies of the United States
and Europe. The system, as Snowden plainly recognised, is incompatible
with ‘the democratic model,’ and can only be practised or accepted by people
who have given up on every element of liberal democracy except the ideas
of common defence and general welfare. A few hours after the 11 September
bombings, Cheney told his associates that the US would have to become
for a time a nation ruled by men and not laws. But his frankness on this point
was exceptional. It may safely be assumed that most of the players go ahead
in their work without realising how much they have surrendered. Those
who are under thirty, and less persistent than Snowden in their efforts of
self-education, can hardly remember a time when things were different.

The year 2008 brought a remission for Snowden, because the Obama
campaign promised a turn away from the national security state and the
surveillance regime. He cherished the warmest hopes for the presidency to
come. I have talked to young men and women like him – a dozen or more
who made a point of saying it that way – for whom the wrecked promise of
a liberating change was worse than no promise at all. Snowden may have
been especially affected because he could see, from inside, how much was
not changing, and how much was growing worse. All this, it should be
added, is to take his report of himself at face value; but on the evidence thus
far, it seems reasonable as well as generous to do so. He took an enormous
risk and performed an extraordinary action, and he now lives under a
pressure of fear that would cause many people to lose their bearings.
Though apparently still in Hong Kong, he says he has no intention of going
to China. He knows that if he does take that step, the authorities will have
no trouble making him out to have been a simple spy.

The first wave of slanders broke as soon as the video interview was
released. What was most strange – but predictable once you thought about it
– was how far the reactions cut across political lines. This was not a test
of Democrat against Republican, or welfare-state liberal versus big-business
conservative. Rather it was an infallible marker of the anti-authoritarian
instinct against the authoritarian. What was distressing and impossible to
predict was the evidence of the way the last few years have worn deep
channels of authoritarian acceptance in the mind of the liberal establishment.
Every public figure who is psychologically identified with the ways of
power in America has condemned Snowden as a traitor, or deplored his
actions as merely those of a criminal, someone about whom the judgment
‘he must be prosecuted’ obviates any further judgment and any need for
thought. Into this category immediately fell the Democratic and Republican
leaders of Congress, Nancy Pelosi, John Boehner, Mitch McConnell, Harry
Reid, as well as every lawmaker closely associated with ‘intelligence
oversight’ of the War on Terror: Dianne Feinstein, Mike Rogers, Lindsey
Graham – here, once again, cutting across party lines. Those who praised
Snowden’s action and (in some cases) his courage included the left-wing
populist Michael Moore, the right-wing populist Glenn Beck, non-statist
liberals such as Senator Sheldon Whitehouse of Rhode Island and Dick
Durbin of Illinois, and non-statist Republicans from the West and South:
Senator Rand Paul of Kentucky and Mike Lee of Utah. But there were others
in dissent, more than at any time since the vote on the Iraq war, lawmakers
who insisted that the secret surveillance by government was a matter of
deeper import than anything about the character of Snowden himself.

Senators Ron Wyden and Mark Udall were prominent here. It was Wyden
who had declared many months earlier that Americans would be stunned
and angry when they learned how the government acted on its secret
interpretation of its right to carry out searches and seizures. Wyden, too, had
been the lawmaker who asked James Clapper, the director of national
intelligence, ‘Does the NSA collect any type of data at all on millions or
hundreds of millions of Americans?’ and received in reply the now entirely
penetrable untruth: ‘Not wittingly.’ Clapper later regretted that his reply
was ‘too cute by half’. The same characterisation would fit the remarks by
President Obama on 7 June: ‘Nobody is listening to your telephone calls.
That’s not what this programme’s about.’ He let fall the cool dismissal with
an assured paternal air, a camp counsellor addressing an unruly pack of
children. But the New York police commissioner, Ray Kelly, was still
unsatisfied: ‘I don’t think it should ever have been made secret,’ Kelly said
on 17 June, and added: ‘What sort of oversight is there inside the NSA to
prevent [malfeasance]?’ The president has said that the necessary reforms are
in place: ‘I came in with a healthy scepticism about these programmes. My
team evaluated them. We scrubbed them thoroughly.’ But this was another
verbal juggle and an economy of truth. They don’t listen to your
conversations unless they want to; but if they want to, they listen. Obama’s
‘team’ scrubbed the programmes and took out some bad bits, but they added
some of their own and then shut the door by bringing the process under
the authority of a secret court. Outlines of the new proceedings are shown to
eight members of Congress who are forbidden by law to say what they learn.

Of the public expressions of contempt for the man who opened the door, one
deserves particular attention. The New Yorker legal journalist Jeffrey
Toobin said that Snowden was a ‘narcissist’, and the word was repeated by
the CBS news presenter Bob Schieffer. What were they thinking? ‘Narcissist’
is so far from capturing any interesting truth about Snowden that the slip
invites analysis in its own right. In this twelfth year of our emergency,
something has gone badly wrong with the national morale. There are cultured
Americans who have lived so long in a privileged condition of dependence
on the security state that they have lost control of the common meanings of
words. A narcissist in Snowden’s position would have defected anonymously
to Russia, sold his secrets for an excellent price, and cashed in by outing
himself in a memoir published in 2018, studded with photographs of his
dacha and his first two wives. Whatever else may be true of him, the actual
Snowden seems the reverse of a narcissist. He made a lonely decision and
sacrificed a prosperous career for the sake of principles that no one who
values personal autonomy can be indifferent to. That is a significant part of
what we know thus far.

Fear must have been among the strongest emotions that penetrated Snowden
when he grasped the total meaning of the maps of the security state to which
he was afforded a unique access. In one sort of mind, and it characterises
the majority of those in power, the fear turns adaptive and changes slowly to
compliance and even attachment. In a mind of a different sort, the fear
leads to indignation and finally resistance. But we should not underestimate
the element of physical fear that accompanies such a moral upheaval. Since
the prosecutions of whistleblowers, the abusive treatment of Manning and
the drone assassinations of American citizens have been justified by the
president and his advisers, a dissident in the US may now think of his
country the way the dissidents in East Germany under the Stasi thought of
theirs. ‘The gloves are off.’ Nor should we doubt that a kindred fear is known
even to the persons who control the apparatus.

21 June

David Bromwich is Sterling Professor of English at Yale. He has written
widely about civil liberties and America’s wars.

Posted in Communities & Focus Areas, Movement Building