Sometimes when I read something there’s a dissonant passage which I usually elide over to finish the reading but which sticks in my head and I (usually) cogitate on it later. That happened when I was reading the first couple days’ worth of Verizon/Prism articles and President Obama’s statement on the programs. This is what the president said on June 7:
“Now, the programs that have been discussed over the last couple days in the press are secret in the sense that they're classified, but they’re not secret in the sense that, when it comes to telephone calls, every member of Congress has been briefed on this program.”
“Now, the programs that have been discussed over the last couple days in the press are secret in the sense that they're classified, but they’re not secret in the sense that, when it comes to telephone calls, every member of Congress has been briefed on this program.”
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“[I]t's important to understand that your duly elected representatives have been consistently informed on exactly what we're doing.”
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“If the intelligence community…actually wants to listen to a phone call, they've got to go back to a federal judge, just like they would in a criminal investigation.”
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“[I]t's important to understand that your duly elected representatives have been consistently informed on exactly what we're doing.”
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“If the intelligence community…actually wants to listen to a phone call, they've got to go back to a federal judge, just like they would in a criminal investigation.”
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“I welcome this debate. And I think it’s healthy for our democracy…”
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“I think that’s good, that we’re having this discussion.”
That is quite dissonant with the statements of Senator Feinstein and others that Edward Snowden committed "treason," no?
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“I think that’s good, that we’re having this discussion.”
That is quite dissonant with the statements of Senator Feinstein and others that Edward Snowden committed "treason," no?
The president’s statement was a legal justification of the programs (I.e., this was not Ollie North's off-the-shelf foreign policy.), a counter to the outrage among some (Here!) that the government had been doing this behind the public’s back, and a concession that Verizon/Prism belonged in the public eye, was ripe for “debate,” “discussion.”
Was what Edward Snowden did legal?
In my view, the threshold consideration is whether Snowden was in legal possession of the documents. He clearly had access to them but access is not identical with legal possession. Thus: I work in a big company. That big company has lots of things. Those things are mine. That's obviously wrong. I can't take company things, pens, papers, computers, home with me for my personal use even though I have access to them. I can't go into a co-workers office and take his umbrella. That's common theft.
The PowerPoint slides: If Snowden was one of those who received that presentation then he was in lawful possession of the slides. I'm not 100% sure of this but I'm pretty sure he was not present. If he was not present and came onto them because he had "access" to them then he was not in legal possession of the slides. Apart from the "Top Secret" nature of the slides, that also is common theft.
In my view, the threshold consideration is whether Snowden was in legal possession of the documents. He clearly had access to them but access is not identical with legal possession. Thus: I work in a big company. That big company has lots of things. Those things are mine. That's obviously wrong. I can't take company things, pens, papers, computers, home with me for my personal use even though I have access to them. I can't go into a co-workers office and take his umbrella. That's common theft.
The PowerPoint slides: If Snowden was one of those who received that presentation then he was in lawful possession of the slides. I'm not 100% sure of this but I'm pretty sure he was not present. If he was not present and came onto them because he had "access" to them then he was not in legal possession of the slides. Apart from the "Top Secret" nature of the slides, that also is common theft.
There is in big companies some common intellectual property. Your work product can be my work product. I'm in lawful possession of your work product but only for the common purpose of the business. So: I work for Google. My work is shared with you, my co-worker. You can take my work product and turn it over to Yahoo. Obviously wrong. This is where "secret" work comes in.
Secrets, Top Secrets, "In a Sense" Secrets.
What of this variant: You and I are co-workers at Google. I put my work product on my public blog. It's now in the public domain, the whole world can see it, you do see it and copy it off my blog and send it to Yahoo. Have you violated any law? Absolutely not. How a person gets "Top Secret" information has important legal consequences. Have I, who put my Google work-product in the public domain, violated any law? No, unless I did it deliberately to injure Google. A person's intent is important legally.
Secrets, Top Secrets, "In a Sense" Secrets.
What of this variant: You and I are co-workers at Google. I put my work product on my public blog. It's now in the public domain, the whole world can see it, you do see it and copy it off my blog and send it to Yahoo. Have you violated any law? Absolutely not. How a person gets "Top Secret" information has important legal consequences. Have I, who put my Google work-product in the public domain, violated any law? No, unless I did it deliberately to injure Google. A person's intent is important legally.
What about government work product? Since government work is, like, for the public, is not all government work public property? Clearly no. Some government work, though done for the public, must be kept secret, "Top Secret," as it said on the NSA PowerPoint slides. Thus: The atomic bomb was developed in secret in the American public's interest. Julius and Ethel Rosenberg, American citizens, acquired "access" but not legal possession to documents on how to build an atomic bomb. They turned over the documents to the Soviet Union. Julius and Ethel Rosenberg were executed for treason. What a person does with the information is legally important. Who the person is who transfers the documents (The Rosenberg's were spies.) and who the person is (A Soviet agent.) who received the documents are legally important.
What if J. Robert Oppenheimer had inadvertently left the designs for the atomic bomb in the New York Public Library? The Rosenbergs if they found those documents, could not turn them over to a Soviet agent because: (1) "Finders keepers, losers weepers" is not a legal doctrine (Access does not equal lawful possession.) (2) Absent-mindedly leaving top secret documents in public is not the same, legally, as volitionally if inadvertently publishing them and making them part of the public domain. (3) Who the Rosenberg's were. (4) Who the recipient was, and (5) What the documents were.
There is however more leeway in the law in some circumstance for similar conduct to that in the examples above. For example, confidential information accidentally left by a police officer on a lobby desk, only to have it recognized for what it was and snapped up by a journalist who happened to be there--that information has been held to have been put into the public domain and can be published. In many circumstances the public can lawfully possess embarrassing, damaging emails between public officials. These laws are drafted in the spirit of "government in the sunshine."
What a document says is important. Edward Snowden released documents that made public government programs that had been in existence for years. The programs were, and are, ongoing, but the cat is substantially out of the bag. What Snowden did was not the equivalent of revealing atomic bomb secrets; it is not like revealing the secret operation to assassinate Osama bin Laden before it happened. Senator Feinstein, Director Clapper, Representative King,et al have not shown by their label of Snowden's actions as treason, that any treason was committed.
What a document says is more important than the label some governmental official puts on it. Somebody stamped those PowerPoint slides "Top Secret." The president of the United States stamped them very differently, as "in a sense secret."
Who Snowden was--not a foreign spy--does not suggest treason. Who Snowden gave the documents to, a newspaper, not a foreign agent, does not suggest treason. Ronald Reagan offered to give to the Soviet Union the details of the "Top Secret" SDI program. That wasn't treasonous and President Reagan was not a spy. Snowden's intent has not been shown to be treasonous. Then there's another president, the same one who put the "in a sense secret" label on Edward Snowden's actions:
Who Snowden was--not a foreign spy--does not suggest treason. Who Snowden gave the documents to, a newspaper, not a foreign agent, does not suggest treason. Ronald Reagan offered to give to the Soviet Union the details of the "Top Secret" SDI program. That wasn't treasonous and President Reagan was not a spy. Snowden's intent has not been shown to be treasonous. Then there's another president, the same one who put the "in a sense secret" label on Edward Snowden's actions:
“I welcome this debate. And I think it’s healthy for our democracy…”
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“I think that’s good, that we’re having this discussion.”
And it is. That is not treason.
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“I think that’s good, that we’re having this discussion.”
And it is. That is not treason.
