Me for Law & Liberty: Edward Snowden was the smart-aleck kid youd like to smackbut he uncovered the same surveillance vigilantism that marked the…

Photo: NPR (courtesy of Edward Snowden)

From my latest for Law & Liberty:

It is easy to detest Edward Snowden. His smug, know-it-all attitude, his numerous apparent factual fabrications, and his self-serving moralizing as he places himself securely among the people of principle who became martyrs to an overweening U.S. government are incessant irritants. He told the media that he had been triggered by the March 2013 testimony of James Clapper, then director of U.S. national intelligence, in which Clapper allegedly lied under oath to assert that NSA did not engage in bulk collection of American citizens communicationsexcept that Snowdens efforts to sabotage that spying had begun many months before.

The sheer volume of the documents and the irrelevance of so many of them to his central claim are also off-putting. Are we really supposed to care about some scholar in Indonesia who applied for a teaching job in Iran just because an NSA video viewed by Snowden caught his cute toddler son clambering over his computer keyboard? The whole point of the Patriot Act was to prevent Islamic terrorismscarcely unknown in Indonesiafrom migrating to U.S. shores as it did before 9/11. It is not surprising that President Barack Obama declined to pardon Snowden before he left office in 2017 despite intensive lobbying by celebrities and NGOs. Fellow leaker Chelsea Manning, whose sentence Obama did commute, had at least served time for her crimes. While there is little evidence that Snowden was an active foreign agent, those who believe he was clandestinely serving the interests of, say, Russia or China, can be forgiven.

The fact remains, however, that Snowden did perform a public service whose value becomes increasingly evident as time passes. NSAs defenders, who include the prominent libertarian legal scholar Richard Epstein, have argued that the agency didnt really eavesdrop on Americans electronic communications, but simply collected metadataraw records of numbers called, emails sent, credit-cards used, and so forth. To examine the contents of any particular communication, agents must obtain a warrant from a FISA-Court judge, the argument goes. The most compelling response to that comes from Georgetown law professor Randy Barnett, who pointed out in a 2015 article for the Harvard Journal of Law and Public Policy that such blanket data seizures are simply 21st-century versions of the general warrants that allowed British authorities to rifle through homes and papers looking for contraband. The Fourth Amendment was drafted specifically to protect against such practices, hence the amendments requirement that search warrants describe particularly the items to be searched or seized.

Furthermore, as evidence mounts that the Federal Bureau of Investigation and the Department of Justice grossly abused the FISA-Court system to spy on Donald Trumps presidential campaign in 2016 (knowingly using the fabulist, Democratic Party-commissioned Steele dossier to obtain warrants, for example), it is obvious that the secretive wholesale surveillance system that Snowden uncovered is in need of drastic reform. In 2015 Congress amended the Patriot Act to limit bulk collection of data, but NSA continues to intercept millions of records under the revised standards. The Justice Department continues to request that the FISA Court authorize more than a thousand search warrants a year on Americans, mostly for electronic surveillance. Compliant FISA judges grant nearly all those requests.

Read the whole thing here.

Posted by Charlotte Allen

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Me for Law & Liberty: Edward Snowden was the smart-aleck kid youd like to smackbut he uncovered the same surveillance vigilantism that marked the...