The Snowden Reader

David P. Fidler

• Publisher: Indiana University Press
• Year: 2015
• Print ISBN: 9780253017314
• eBook ISBN: 9780253017383
• Topic: History
• Subtopic: North American History
• Index: History

When Edward Snowden began leaking NSA documents in June 2013, his actions sparked impassioned debates about electronic surveillance, national security, and privacy in the digital age. The Snowden Reader looks at Snowden's disclosures and their aftermath. Critical analyses by experts discuss the historical, political, legal, and ethical issues raised by the disclosures. Over forty key documents related to the case are included, with introductory notes explaining their significance: documents leaked by Snowden; responses from the NSA, the Obama administration, and Congress; statements by foreign leaders, their governments, and international organizations; judicial rulings; findings of review committees; and Snowden's own statements. This book provides a valuable introduction and overview for anyone who wants to go beyond the headlines to understand this historic episode.

PART I

PERSPECTIVES ON THE

SNOWDEN
DISCLOSURES

1

Security and Liberty:
The Imaginary Balance

NICK CULLATHER

If one truism captures the tenor of discussion surrounding the Snowden revelations, it is the recurring metaphor of balance between liberty and security. In May 2013, three days after Snowden fled to Hong Kong but before his disclosures began, President Obama maintained his administration was “working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are.”¹ Later, as the magnitude of National Security Agency’s mass surveillance became clear from Snowden’s leaks, editorialists condemned the president in almost the same words: George W. Bush had “tipped the balance too far from liberty towards security,” wrote The Economist, “and it has stayed there under Barack Obama.”²

On December 16, 2013, a federal district judge ruled the NSA’s domestic telephony metadata program “probably unconstitutional,” and observed that the case was “the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. . . . In the months ahead, other Article III courts, no doubt will wrestle to find the proper balance consistent with our constitutional system.”³ On December 27, 2013, another judge in a different circuit upheld the NSA’s telephony metadata program in dismissing a lawsuit from the American Civil Liberties Union. Referring to the 9/11 Commission, this judge stated that “[t]he choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil.”⁴

Extending the meme beyond America’s borders, Silicon Valley giants—including Google, Facebook, and Twitter—objected in an open letter in December 2013 that the “balance in many countries has tipped too far in favor of the state and away from the rights of the individual.”⁵ The contexts in which the “balance” metaphor has arisen in responses to Snowden’s disclosures all refer to government’s need to protect official secrets as central to the maintenance of “security.” Through repetition, the balance cliche has gained an aura of probity, even wisdom. It appears to be a neutral framing of the problem of official secrecy, but the perception that liberty and security sit in the teetering pans of a beam scale comes laden with assumptions that deserve examination.

This perception implies that security and liberty are competing considerations and that a responsible government has an obligation to restrict civil liberties to meet a minimum standard of diligence in pursuit of security. It also carries connotations of quantity and precision, as if security and liberty are two columns in a ledger in which incremental deductions can be measured or recorded.⁶

The metaphor also gives primacy to administration over law or principle, conveying a notion that the process of balancing is a matter of bureaucratic fine-tuning, not a job for politicians or citizens but for experts. And, finally, it implies a permanence to the process, as if balancing (“a continuing challenge”) has always gone on and always will. In December 2013, Senator Ron Wyden attributed “what’s always been the constitutional teeter-totter” to “the founding fathers, it really comes back to that. They always said, our system works when you have liberty and security in balance.”⁷

The Invented History of Balance

Wyden felt no need to specify which founding father invented the teeter-totter image or in which of the Federalist Papers it appeared. Nor did Senator Charles Schumer, who told Face the Nation that the “balance” issue was “age-old . . . since the Constitution was written.”⁸ Although the image gains much of its rhetorical power from its presumed antiquity, it does not appear in any of the founding documents, the debates in the Congressional Globe, or the speeches of Abraham Lincoln. Oliver Wendell Holmes, who limited free speech to those not yelling fire in crowded theaters, did not mention it. Perhaps more strikingly, Americans weathered three existential crises in the first half of the twentieth century—World War I, the Great Depression, and World War II—without discussing or attempting to balance security and liberty.

In facing dangers more dire than terrorism, previous administrations pushed for suspension or modification of conceptions of liberty by arguing either that the circumstances required it or the Constitution allowed it. Woodrow Wilson’s administration, in securing passage of the 1917 espionage laws under which Snowden is charged, stated plainly that the Bill of Rights was suspended for the duration of the war. Wilson noted that “a time of war must be regarded as wholly exceptional, and that it is legitimate to regard things which would in ordinary circumstances be innocent as very dangerous.”⁹

Franklin Roosevelt, in asking for a vast expansion of executive power to meet the twin emergencies of the Depression and war persuasively argued that the Constitution was expansive enough to accommodate the requirements of liberty as well as the need to act in the national defense. “Our Constitution is so simple and practical,” he explained in his first inaugural, “that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”¹⁰ Wilson and Roosevelt each violated civil liberties on a frightful scale, but these older justifications had the advantage of requiring politicians to acknowledge the violation, to say when the public could expect its full rights to be restored, and to explain their interpretation of their obligations under the Constitution.

Balance and the Politics of Secrecy

It was only in the 1940s that the term “security” came to mean protecting state secrets, or, as the Oxford English Dictionary’s earliest record of this usage put it, “the Army term for what normal people call secrecy.”¹¹ The apparatus of official secrecy in the United States, as well as the balance metaphor used to justify it, emerged in the particular cultural setting of the nuclear age, the Red Scare, wiretapping by the Federal Bureau of Investigation (FBI), and the Cold War. Its inventor was Harry S. Truman, under attack for tolerating a State Department riddled with communist spies and for overzealously enforcing the loyalty codes intended to keep spies out. On January 23, 1951, he named Admiral Chester Nimitz to head a presidential commission on secrecy and enjoined him to “seek the wisest balance that can be struck between security and freedom.”¹² It was the first recorded use of the balance image.

The balance trope, thus, emerged in a specific policy context. The Nimitz Commission was the first of a series of panels that dismantled the patchwork of McCarthy-era loyalty programs and replaced them with a unified, professionalized system of security clearances. This system classified two things, documents and personnel. Documents were divided into three primary and other exceptional levels of secrecy, and personnel were given “clearance” at corresponding levels. The classification system emerged as a solution to the divisive politics of loyalty, which subjected the Truman and Eisenhower administrations to repeated charges of harboring subversives and sympathizers and which subjected officials, writers, educators, and anyone of influence to unsubstantiated charges against their integrity.

The loyalty programs began in 1941, when Roosevelt authorized the FBI to fingerprint and investigate the backgrounds of all federal employees. In 1947, Truman created an extensive apparatus of commissions to enforce the “complete and unswerving loyalty” of all federal employees.¹³ Dismissal was mandated on the basis of any “derogatory information” or simply by the subject’s inability to refute unsubstantiated charges. Loyalty was a universal category, and anyone positioned anywhere in the government, from the Manhattan Project to the Bureau of Weights and Measures, could be fired on the basis of mere accusation. The FBI pushed the program outside government, sending “blind memoranda” to private companies fingering suspect employees on their payrolls.¹⁴

By 1951, Truman faced a rising public backlash against indiscriminate investigations and reckless allegations of disloyalty. At the same time, Senator Joseph McCarthy was accusing the administration of harboring hundreds of known communists. The security clearance system was designed to narrow investigations to a smaller set of officials who had access to high-level secrets. The press generally applauded the move, but editorials hit at Truman’s framing of the issue as one of balance. The New York Times argued, “We do not have to choose between sedition or treason on the one hand and a sterile conformity on the other. We do not have to endure either.”¹⁵ “Security and freedom are not in conflict,” insisted the Washington Post, “they are, on the contrary, complimentary.”¹⁶ Editorials maintained that the government was responsible for ensuring both security and liberty, but they welcomed a more civil and methodical process for granting security clearances.

Begun by the Nimitz Commission, the work of establishing a nonpolitical system for rationing security clearances was implemented through presidential Executive Orders 10290 and 10450 and finalized by the Wright Commission in 1957. This solution turned the fractious issue of loyalty into an issue of “suitability” assessed through a system of uniform procedures. “All loyalty cases are security cases, but the converse is not true,” the Wright Commission observed. “A man who talks too freely when in his cups or a pervert who is vulnerable to blackmail may both be security risks although both may be loyal Americans.”¹⁷ The polygraph, psychological profiling, and background investigations were tools for drawing a harder, more scientific line between the suitable and the unsuitable.

The new system changed loyalty from a political question to a procedural one and changed “clearance” from a verdict—exoneration before a Loyalty Board—into a credential. By the late 1950s, it was being used as an ordinary noun, a “security clearance,” something everyone in defense or intelligence work had to have. This strategy did not fully end the injustices of the loyalty screenings. In fact, it replaced the Red Scare with a Lavender Scare as the government searched for evidence of unsuitability in bedrooms.¹⁸ But, consequentially for the Snowden case, it introduced new hierarchies, between sensitive jobs and nonsensitive ones, those with a clearance and those without, and, eventually, between those with various levels of clearance.

The Cleared and the Uncleared

The language of balance was, thus, introduced to describe the proper relation between the small group of people with a security clearance and the remainder of the American public, which now had no legitimate recourse to the growing system of hidden knowledge ...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Acknowledgments
• Editor’s Note
• Abbreviations
• Introduction
• Part I · Perspectives on the Snowden Disclosures
• Part II · The Snowden Affair Through Primary Documents
• Contributors
• Index