Response to “Against Moral Absolutism: Surveillance and Disclosure After Snowden”

| June 2015
Facebook Twitter Email
Print Friendly, PDF & Email

snowden 1

In the latest issue of Ethics & International Affairs Rahul Sagar accuses Glenn Greenwald and Edward Snowden of succumbing to crude conspiracy theories along with an irresponsible “moral absolutism that disrespects the norms and procedures central to a constitutional democracy.” Because they allegedly treat privacy and transparency as moral trumps, Snowden’s revelations about NSA surveillance, and Greenwald’s complicity in those leaks, cannot be justified.

The oldest trick in the book is to dismiss the actions of dissenters by misrepresenting and indeed caricaturing them. Unfortunately, Sagar has done just that.

Revealingly, Snowden’s own words and ideas are barely mentioned in Sagar’s article. Sagar discredits Snowden and Greenwald by arguing that they have recklessly “chosen to expose lawful surveillance programs.” Yet Snowden’s core criticism of the NSA programs is precisely that they are illegal and probably unconstitutional. Sagar claims that Greenwald and Snowden “proceeded in the absence of evidence of the abuse of authority.” In reality, they have repeatedly supplied such evidence.

As Snowden has noted, the main legal grounds for NSA surveillance can be found in Section 215 of the USA Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act. The former was intended to permit access to preexisting “tangible objects” (for example, business records, library materials) when terrorism was suspected; it was not intended to invite the creation of a vast record of digital (or “telephony”) metadata in order to identify prospective terrorist risks. Section 702 allows authorities potentially to spy on “non-U.S. persons” located outside the United States. Both Snowden and many independent analysts have noted, however, that the NSA has been collecting data on U.S. citizens who may never have traveled further east than Staten Island or west than San Jose. Defending Snowden, cybersecurity expert Fred Cate accurately claims that even on a broad reading of the statutes in question it “strains credulity to believe that there was any basis” for recent NSA activities in them.[1] In stark contrast to Sagar, Snowden simply does not believe that “all three branches of government” approved the surveillance programs. Snowden also believes that U.S. spying on foreigners abroad violates significant human rights agreements. On this view, mass surveillance decimates the right to privacy as codified in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Snowden’s acts have nothing to do with conspiracy theory or moral absolutism. Instead, he understands that fidelity to the “norms and procedures central to a constitutional democracy” means first and foremost that those who exercise power require a firm basis for their actions in the law. Sagar’s jurisprudence, in contrast, comes perilously close to embracing the dubious view that whatever powerful executive-level officials assert is lawful deserves to be treated as such. Snowden has made a thoughtful case that the NSA and those in the executive branch who have abetted its practices are engaging in legally dubious activity. Of course, one may legitimately disagree with Snowden on this matter, as Sagar obviously does. But we should at least should try to get his ideas right. Absent his leaks we probably would not be having the overdue debate about state secrecy and constitutional government presently taking place. Even if one thinks Snowden’s views troublesome, that should count for something.

Snowden in fact agrees with Sagar that a government employee “cannot disobey the law simply because covert surveillance activities offend his personal conscience.” For precisely this reason, Snowden has laid out an impressive legal and constitutional case against NSA surveillance. One can question the virtues of describing his actions as civil disobedience. Like Martin Luther King and other iconic civil disobedients, however, Snowden believes that politically motivated lawbreaking is only justified when it evinces what King’s “Letter From Birmingham City Jail” called the “very highest respect for the law.” Snowden’s detailed legal and constitutional arguments, which Sagar simply ignores, are intended to provide evidence for his fundamental respect for the law.[2]

Sagar also argues that Snowden and Greenwald crudely see government secrecy and surveillance as unambiguous political and moral evils. In fact, Snowden has occasionally suggested that his primary goal is a reformed NSA better able to confront genuine security threats. Nor do Snowden’s understandable worries about failed congressional oversight of the NSA point to “a caricatured view of democracy.” Unlike Sagar, however, he believes that meaningful democracy requires effective oversight of such activities by our elected representatives and the judiciary. On this matter, Snowden’s position is very much in the mainstream of modern liberal democracy, whereas Sagar’s perhaps is not. According to Sagar, neither Congress nor the courts can be counted on to exercise oversight. On this crucial point, Snowden is a disciple of James Madison and the venerable idea of a separation of powers. Sagar’s competing view that we should generally trust the executive because of its superior expertise instead is reminiscent of the authoritarian German legal theorist Carl Schmitt.

In fairness, unlike Schmitt, Sagar leaves some room for leakers and whistleblowers who disclose classified information when exposing “an abuse of public authority, understood as the violation of law.” Unfortunately, Sagar’s view of what the law requires of power holders seems open-ended to the point of meaningless. In contrast, Snowden and Greenwald know that the rule of law has to restrain those who exercise state power in meaningful ways. On their view, NSA officials have been making mincemeat of the law in ways that imperil both democracy and law-based government. The fact that so many people both in the United States and abroad now sympathize with that position suggests that we should take it seriously.

Sagar ends by evoking the virtues of responsible political action as an alternative to the alleged moral absolutism of Greenwald and Snowden. In fact, it is U.S. officials who have acted irresponsibly. Because of thoughtful critics like Greenwald and Snowden, they may finally pay a modest price for their irresponsibility.

For more from William Scheuerman on civil disobedience and Edward Snowden, read his 2014 article in Eurozine.


[1] Fred H. Cate, “Edward Snowden and the NSA: Law, Policy, and Politics,” in The Edward Snowden Reader (Bloomington, Ind.: Indiana University Press, 2015), p. 27. See, more generally, Cate’s thorough discussion of the legal matters at hand.

[2] For the details, see my “Taking Snowden Seriously: Civil Disobedience in an Age of Total Surveillance,” The Edward Snowden Reader, pp. 70-87.


Facebook Twitter Email


Category: Online Exclusive, Response

Comments (1)

Trackback URL | Comments RSS Feed

  1. Tom Nichols says:

    Except, of course, that Snowden has never demonstrated that depth of understanding of the issue, did not have any idea that was what he was stealing (and now admits he did not read what he stole), and it does not explain anything about the ongoing revealing of US operations overseas that have nothing to do with surveillance or US civil liberties. Snowden himself has no answer for this other than “citizen of the world” flummery that he’s been practicing saying until it sounds right.
    Other than that, makes perfect sense. 🙂