EDWARD SNOWDEN: I
think that the public is owed an explanation of the motivations behind
the people who make these disclosures that are outside of the democratic
model. When you are subverting the power of government, that that’s a
fundamentally dangerous thing to democracy. And if you do that in secret
consistently, you know, as the government does when it wants to benefit
from a secret action that it took, it will kind of get its officials a
mandate to go, "Hey, you know, tell the press about this thing and that
thing, so the public is on our side." But they rarely, if ever, do that
when an abuse occurs. That falls to individual citizens. But they’re
typically maligned. You know, it becomes a thing of these people are
against the country, they’re against the government. But I’m not. I’m no
different from anybody else. I don’t have special skills. I’m just
another guy who sits there, day to day, in the office, watches what
happening—what’s happening, and goes, "This is something that’s not our
place to decide. The public needs to decide whether these programs and
policies are right or wrong." And I’m willing to go on the record to
defend the authenticity of them and say, "I didn’t change these. I
didn’t modify the story. This is the truth. This is what’s happening.
You should decide whether we need to be doing this."
NERMEEN SHAIKH: Edward
Snowden’s actions have elicited a range of reactions. Jeffrey Toobin
of CNN and The New Yorker writes that Snowden is, quote, "a grandiose
narcissist who deserves to be in prison." Democratic Senator Dianne
Feinstein, chair of the Senate Intelligence Committee, said that Snowden
should not be considered a whistleblower because, quote, "what he did
was an act of treason." And Republican Senator Lindsey Graham of South
Carolina tweeted, "I hope we follow Mr Snowden to the ends of the earth
to bring him to justice," language echoing what Senator Graham once said
in the hunt for Osama bin Laden.
AMY GOODMAN: Meanwhile, Douglas
Rushkoff wrote on CNN, quote, "Snowden is a hero because he realized
[that] our very humanity was being compromised by the blind
implementation of machines in the name of making us safe," unquote. The
editor of The American Conservative, Scott McConnell, wrote, quote, "If
Obama wanted to do something smart, he should thank Snowden and offer
him a job as a White House technology advisor." And Pentagon Papers
whistleblower Daniel Ellsberg sang Snowden’s praises, writing, quote,
"In my estimation, there has not been in American history a more
important leak than Edward Snowden’s release ofNSA material—and that
definitely includes the Pentagon Papers 40 years ago."
For more,
we host a debate on Edward Snowden. Is he a hero or a criminal,
whistleblower or a traitor? Here in New York, we’re joined by Chris
Hedges, senior fellow at The Nation Institute; was a foreign
correspondent for The New York Timesfor 15 years, was part of a team of
reporters that was awarded the Pulitzer Prize in 2002 for the paper’s
coverage of global terrorism; author, along with the cartoonist Joe
Sacco, of the New York Times best-seller Days of Destruction, Days of
Revolt . His most recent
article is called "The Judicial Lynching of Bradley Manning" at Truthdig.org.
And in Chicago, Illinois, we’re joined by Geoffrey Stone, a professor at the University of Chicago Law School. His recent
piece for The
Huffington Post is called "Edward Snowden: 'Hero or Traitor'?" Stone
served as an informal adviser to President Obama in 2008. In 1992, 20
years ago, Professor Stone hired Obama to teach constitutional law at
the University of Chicago. Geoffrey Stone is also author of many books,
including Top Secret: When Our Government Keeps Us in the
Dark and Perilous Times: Free Speech in Wartime: From the Sedition Act
of 1798 to the War on Terrorism.
Chris Hedges, Geoffrey Stone, we
welcome you both to Democracy Now! Professor Stone, I want to begin with
you. In your piece, you say that Edward Snowden’s actions were
criminal. Can you explain why you feel he should be in jail?
GEOFFREY STONE: Well,
there is a federal statute that makes it a crime for public employees
who have been granted access to classified information to reveal that
information to persons who are unauthorized to receive it. So, from a
simple, straightforward, technical legal standpoint, there’s absolutely
no question that Snowden violated the law. And from that standpoint, if
he’s tried, he will be convicted, and he is in fact, from that
perspective, a criminal. Whether one admires what he did is another
question, but it doesn’t have anything to do with whether or not what he
did was unlawful.
The question, why I think he deserves
punishment, is—he said it actually himself in the clip that you played
earlier: He said, "I’m just an ordinary guy." Well, the fact is, he’s
just an ordinary guy with absolutely no expertise in public policy, in
the law, in national security. He’s a techie. He made the decision on
his own, without any authorization, without any approval by the American
people, to reveal classified information about which he had absolutely
no expertise in terms of the danger to the nation, the value of the
information to national security. That was a completely irresponsible
and dangerous thing to do. Whether we think it was a positive thing in
the long run or not is a separate question, but it was clearly criminal.
AMY GOODMAN: Chris Hedges, your response?
CHRIS HEDGES: Well,
what we’re really having a debate about is whether or not we’re going
to have a free press left or not. If there are no Snowdens, if there are
no Mannings, if there are no Assanges, there will be no free press. And
if the press—and let’s not forget that Snowden gave this to The
Guardian. This was filtered through a press organization in a classic
sort of way whistleblowers provide public information about
unconstitutional, criminal activity by their government to the public.
So the notion that he’s just some individual standing up and releasing
stuff over the Internet is false.
But more importantly, what he
has exposed essentially shows that anybody who reaches out to the press
to expose fraud, crimes, unconstitutional activity, which this clearly
appears to be, can be traced and shut down. And that’s what’s so
frightening. So, we are at a situation now, and I speak as a former
investigative reporter for The New York Times, by which any
investigation into the inner workings of government has become
impossible. That’s the real debate.
NERMEEN SHAIKH: Well, Chris,
how do you respond to the point that Geoffrey Stone made and how Snowden
identified himself as an ordinary guy? Should any regular government
employee or contractor be allowed to disclose whatever information he
feels the public ought to be privy to, whether it’s classified by the
government and his employer or her employer or not?
CHRIS HEDGES: Well,
if—that is what an act of conscience is. And reporters live—our sort of
daily fare is built, investigative reporters, off of people who, within
systems of power, have a conscience to expose activities by the power
elite which are criminal in origin or unconstitutional. And that’s
precisely what he did. And he did it in the traditional way, which was
going to a journalist, Glenn Greenwald and The Guardian, and having it
vetted by that publication before it was put out to the public. Was it a
criminal? Well, yes, but it was—I suppose, in a technical sense, it was
criminal, but set against the larger crime that is being committed by
the state. When you have a system by which criminals are in power,
criminals on Wall Street who are able to carry out massive fraud with no
kinds of repercussions or serious regulation or investigation,
criminals who torture in our black sites, criminals who carry out
targeted assassinations, criminals who lie to the American public to
prosecute preemptive war, which under international law is illegal, if
you are a strict legalist, as apparently Professor Stone is, what you’re
in essence doing is protecting criminal activity. I would argue that in
large sections of our government it’s the criminals who are in power.
AMY GOODMAN: Professor Stone, your response?
GEOFFREY STONE: Well,
first of all, there is, so far as I can tell from
everything that’s
been revealed, absolutely nothing illegal or criminal about these
programs. They may be terrible public policy—I’m not sure I approve of
it at all—but the fact is the claim that they’re unconstitutional and
illegal is wildly premature. Certainly from the standpoint of what’s
been released so far, whether Mr. Hedges likes it or not, or whether Mr.
Snowdon likes it or not, these are not unconstitutional or illegal
programs.
AMY GOODMAN: Let me go to a letter that you co-signed,
Professor Stone, in 2006 with other prominent attorneys
about NSA surveillance under President Bush. You were criticizing it.
You wrote, quote, "Although the program’s secrecy prevents us from being
privy to all of its details, the Justice Department’s defense of what
it concedes was secret and warrantless electronic surveillance of
persons within the United States fails to identify any plausible legal
authority for such surveillance. Accordingly the program appears on its
face to violate existing law." How do you compare that to what we’re
seeing today?
GEOFFREY STONE: They’re two completely different
programs. The Bush NSAsurveillance program was enacted in direct
defiance of the Foreign Intelligence Surveillance Act. The Obama
program, if we want to call it that, was approved by Congress. That’s
number one. Number two is, the Bush program involved wiretapping of the
contents of phone conversations. The Supreme Court has long held that
that is a violation of the Fourth Amendment, if there’s not an
individualized determination of probable cause. The Obama program, if we
want to call it that, does not involve wiretapping; it involves phone
numbers. And the Supreme Court has long held that the government is
allowed to obtain phone records, bank records, library records, purchase
records, once you disclose that information to a third party. And there
is no Fourth Amendment violation. So they’re two completely different
programs.
AMY GOODMAN: But if you just heard our conversation with
the mathematician Susan Landau, she argued that often metadata is more
revealing than the transcript of an actual conversation. Do you think
the law should change, Geoffrey Stone, to include this metadata?
GEOFFREY STONE: Well,
I’m not persuaded by her argument that it’s more revealing. I do
believe that it’s problematic, and I think, in fact, there should be
statutes that prohibit the gathering of this type of data by private
entities, as well as by the government, in the absence of at least a
compelling justification. And I thought the Supreme Court’s decisions
initially on this question were wrong. So I would certainly want to see
them differently. But in terms of what the law is, it’s not
unconstitutional, it’s not illegal, and it’s completely different from
what the Bush administration was doing.
NERMEEN SHAIKH: Chris Hedges, do you agree that—
CHRIS HEDGES: Well, there are plenty of lawyers who disagree with Professor Stone.
GEOFFREY STONE: Not many.
CHRIS HEDGES: Well,
the ACLU has just issued a lawsuit over this, claiming that it’s a
violation of the Fourth Amendment. So, I haven’t done a poll. Frankly,
the legal profession, under this steady assault of civil liberties,
can’t hold its head very high. There are a few out there, at the ACLU—
GEOFFREY STONE: Unlike—unlike the journalistic profession?
CHRIS HEDGES: —Michael Ratner and a few others. But, you know—
AMY GOODMAN: Geoffrey Stone, aren’t you on the board of the ACLU, or were you?
GEOFFREY STONE: I’m on the National Advisory Council.
AMY GOODMAN: Yes. So what do you think of them suing the government over this?
GEOFFREY STONE: I
think it’s great. I think that they are perfectly right to bring the
question. That’s their job. Their job is to challenge whether or not
things are constitutional, to raise those questions. That’s exactly what
they should be doing. Doesn’t mean they’re always right, but they
should be presenting these questions to the courts. That’s their job.
That’s their responsibility.
NERMEEN SHAIKH: Chris Hedges, one of
the problems that people have pointed to is that there aren’t procedures
or mechanisms in place for people within the government to point out
wrongdoing when it does occur. Do you think that’s one of the problems
that’s occurred in this case with Edward Snowden? Or, for that matter,
your most recent article was on Army whistleblower, Private Bradley
Manning.
CHRIS HEDGES: Well, we used to have a mechanism. It was
called the press. And we used to be able to tell our sources that they
would be protected and that they would not be investigated for providing
information that exposed the inner workings of power. Unfortunately,
the press, like most institutions in this country, and I would add the
legal profession, has largely collapsed under this corporate coup d’état
that’s taken place and is no longer functioning. And I want to get
back, that what this is fundamentally a debate about is whether we are
going to have, through the press, an independent institution within this
country that can examine the inner workings of power or not. And it is
now—I mean, many of us had suspected this widespread surveillance, but
now that it’s confirmed, we’re seeing—you know, why did Snowden come out
publicly? Well, because I think he knew that they would find out
anyway, because they have all of Glenn Greenwald’s email, phone records
and everything else, and they can very quickly find out who he was
speaking to and whether Snowden had contact with him. And that—you know,
I speak as reporter—is terrifying, because it essentially shuts down
any ability to counter the official propaganda and the official
narrative and expose the crimes. And we have seen in the last few years
tremendous crimes being committed by those in power. We have no ability
now to investigate them.
AMY GOODMAN: Professor Stone, let me ask
you about whether the reporters from The Guardian and The Washington
Post should be prosecuted. CNN’s Anderson Cooper put this question to
Republican Congressmember Peter King of New York last night.
ANDERSON COOPER: As
far as reporters who helped reveal these programs, do you believe
something should happen to them? Do you believe they should be punished,
as well?
REP. PETER KING: Actually, if
they—if they willingly knew that this was classified information, I
think actions should be taken, especially on something of this
magnitude. I know that the whole issue of leaks has been gone into over
the last month, but I think something on this magnitude, there is an
obligation, both moral but also legal, I believe, against a reporter
disclosing something which would so severely compromise national
security.
AMY GOODMAN: Professor Stone, your response to what Peter King is saying?
GEOFFREY STONE: He’s
just wrong. The Supreme Court, in the Pentagon Papers case, for
example, made very clear that although Daniel Ellsberg could be
prosecuted for—as a public official stealing information, that The New
York Times and The Washington Post could not be restrained from
publishing that information. The court has essentially held that
although the government can control classified information at its source
by prohibiting employees from revealing it, once the information goes
out, it cannot then punish the press for publishing it. It’s a little
bit odd as a system. But the idea is that, on the one hand, we have
freedom of the press, which has to be preserved; on the other hand, the
government has a legitimate interest in maintaining confidentiality at
the source within the government itself. So, no, clearly, Greenwald and
Reuters and so on, none of those can be — The Guardian, none of those
can be punished, consistent with the First Amendment. That’s clear.
NERMEEN SHAIKH: Professor
Stone, so do you believe that Edward Snowden’s position is comparable
to Daniel Ellsberg’s position with the Pentagon Papers and that The
Guardian played a comparable role to The New York Times?
GEOFFREY STONE: So,
I think Snowden’s position, based upon what I know now, is much worse.
Ellsberg revealed historical information that had really no appreciable
threat to the national security. It was all old information about what
the government had done in the past. And what Snowden has revealed is
information about ongoing programs, which, we’re told, are extremely
important to the national security, and we’re told that the revelation
of those programs makes them far less efficient. That’s a very
serious—potentially very serious harm to the nation. That was not the
case in Ellsberg’s situation.
AMY GOODMAN: But, Professor Stone—
GEOFFREY STONE: So I think, from that standpoint, what—
AMY GOODMAN: Henry Kissinger said—
GEOFFREY STONE: Yes.
AMY GOODMAN: —Dan
Ellsberg was "the most dangerous man in America," so they certainly—at
that time, they were telling us that what he was doing was threatening
national security.
GEOFFREY STONE: He said that at the time before
they had an opportunity to really reflect on what was released. Years
later, or even weeks later, that was no longer the case. So, I think
that those two situations are not remotely comparable, in terms of the
harm that Ellsberg did to the country, which I think was trivial,
relative to what Snowden has done, which arguably is far more serious.
Let
me make another point about civil liberties here, by the way, that it’s
extremely important to understand that if you want to protect civil
liberties in this country, you not only have to protect civil liberties,
you also have to protect against terrorism, because what will destroy
civil liberties in this country more effectively than anything else is
another 9/11 attack. And if the government is not careful about that,
and if we have more attacks like that, you can be sure that the kind of
things the government is doing now are going to be regarded as small
potatoes compared to what would happen in the future. So it’s very
complicated, asking what’s the best way to protect civil liberties in
the United States.
CHRIS HEDGES: I just don’t buy this argument
that, you know, this hurts national security. I covered al-Qaeda for The
New York Times, and, believe me, they know they’re being monitored. The
whole idea that somehow it comes as a great surprise to jihadist groups
that their emails, websites and phone calls are being tracked is
absurd. This is—we’re talking about the wholesale collection of
information on virtually most of the American public, and the
consequences of that are truly terrifying. At that point, we are in
essence snuffing out the capacity of any kind of investigation into the
inner workings of power. And to throw out this notion that it
harmed—this harmed national security, there’s no evidence for that, in
the same way that there is no evidence that the information that Bradley
Manning leaked in any way harmed national security. It didn’t. What the
security and surveillance state is doing is playing on fear and using
that fear to accrue to themselves tremendous forms of power that in a
civil society, in a democracy, they should never have. And that’s the
battle that’s underway right now, and, frankly, we’re losing.
AMY GOODMAN: I
wanted to ask you, Professor Stone, to reflect on Martin Luther King’s
letter from Birmingham jail written April 16, 1963, when he said, "One
who breaks an unjust law that conscience tells him is unjust, and who
willingly accepts the penalty of imprisonment in order to arouse the
conscience of the community over its injustice, is in reality expressing
the highest respect for law." ...
Could you respond to that?
GEOFFREY STONE: Sure.
Obviously, King is right. The question is whether it’s an unjust law.
So, people who violate a law because they think it is unjust don’t
necessarily fit within the letter from the Birmingham jail. King was
talking about protesting racial segregation, and that’s a little bit
different in terms of the moral status of it. Now, maybe it’s true. I
mean, maybe Chris Hedges is right, and maybe that—that Snowden is a
hero, and maybe this is all a fraud on the part of the government, this
information serves no useful purpose, and it’s fundamentally important
to the United States that it’s been revealed. Maybe that’s true. And if
it turns out to be true, then I’ll be the first to say Snowden was a
hero. But at the moment, I have absolutely no reason to believe that.
And to say that some people act on legitimate conscience and therefore
violate unjust laws is not to say that everyone who violates a law is
Martin Luther King in the Birmingham jail.
AMY GOODMAN: I want to
put that question to Chris, but I wanted to ask you, Geoffrey Stone, if
you were Edward Snowden’s attorney, what arguments would you put forward
for him right now?
GEOFFREY STONE: Legally, I don’t think he
has—honestly, I don’t think he has any legal arguments that would be a
defense to the charge that he violated the law about government
contractors not disclosing classified information to persons who are not
authorized to receive it. I don’t think he has a defense. Some people
commit a crime, and they committed the crime. And I don’t know that
there’s any defense sometimes.
AMY GOODMAN: Interestingly, Dan
Ellsberg faced treason trial, but ultimately, the—he ended up being
exonerated because of the illegal wiretapping that was done of him.
GEOFFREY STONE: Well,
he wasn’t exonerated. In his case, the judge dropped the charges
against him because the Nixon administration searched his psychiatrist’s
office in violation of the Constitution, and the judge concluded that
that was prosecutorial misconduct, and therefore dismissed the
prosecution. If the government does something similar in Snowden’s case
and the court finds that it’s a violation of his constitutional rights
in the course of the investigation and dismisses the charges, that would
be something, as his lawyer, I’d certainly want to know. But on the
merits of the charge as they presently—as it presently stands, I think
it’s a sentencing question, not a criminality question.
AMY GOODMAN: Chris Hedges, if you could respond to the King quote and the significance of what Snowden did?
CHRIS HEDGES: Well,
without figures like Snowden, without figures like Manning, without
figures like Julian Assange, essentially, the blinds are drawn. We have
no window into what’s being done in our name, including the crimes that
are being done in our name. Again, I—you know, having worked as an
investigative reporter, the lifeblood of my work were figures like
these, who had the moral courage to stand up and name the crimes that
they witnessed. And these people are always, at the moment that they
stand up—and even King, of course, was persecuted and reviled and
denounced, hounded by J. Edgar Hoover, who attempted, through blackmail,
to get him to commit suicide before accepting the Nobel Prize. Let’s
not forget that all of these figures, like Snowden, come under this
character assassination, which, frankly, I think Professor Stone is
engaging in. And that’s not uncommon. That’s what comes with the
territory when you carry out an act of conscience. It’s a very lonely
and frightening—and it makes these figures, like Snowden, deeply
courageous, because, I mean, the whole debate—traitor or
whistleblower—for me, you know, hearing this on the press is watching
the press commit collective suicide, because without those figures,
there is no press.
AMY GOODMAN: I wanted to end with Professor
Stone. You were an early adviser to President Obama. You gave him his
first job at University of Chicago Law School. You were the dean of the
University of Chicago Law School. What would you advise him today?
GEOFFREY STONE: I
think there needs to be a really careful re-evaluation of the
classification system. I—there’s no question that we wildly
overclassify, and that creates all sorts of problems, both for the press
and for the ability of the government to keep secrets, because if you
try to keep everything secret, you don’t effectively keep very much
secret. So I think that’s critical. I think there is a serious question
about how we make the trade-off between security and privacy, and I
think that that’s an issue that needs to be addressed carefully.
Certainly, within the administration and within the government, to the
extent there are genuinely secret policies that need to be kept secret,
and I believe that perfectly possible, then I think that does not
immunize them from serious debate by responsible people within the four
corners of the administration, bringing in people who can have national
security clearances to take the devil’s advocate position and challenge
these issues. So I think there’s a lot that can and should be done, and I
think that it’s easy to get swept up in the notion of security being
the be all and end all. This is a nation that’s committed to individual
privacy, to freedom of the press, to freedom of speech, and those values
need to be respected. And I think government constantly has to be
re-examining itself, because all the temptations are in the wrong
direction.
NERMEEN SHAIKH: Professor Geoffrey Stone, before we conclude, I’d like to ask you about an
article you
wrote in 2011 for The New York Times called "Our Untransparent
President." You wrote, quote, "The record of the Obama administration on
this fundamental issue of American democracy has surely fallen short of
expectations. This is a lesson in 'trust us.' Those in power are always
certain that they themselves will act reasonably, and they resist
limits on their own discretion. The problem is, 'trust us' is no way to
run a self-governing society," end-quote. What’s your assessment of the
comments that you made then relative to now and his—Obama’s record on
transparency and civil liberties?
GEOFFREY STONE: Well, I think
the comment was correct then, and I think it’s correct today. I think
that there’s a temptation on the part of public officials to basically
say, "We don’t to be hassled, we don’t want to be bothered, we don’t
want to be criticized, so we’ll just do what’s in the best interest of
the country, and we don’t have to tell anybody about it." And that’s a
huge danger in a democracy. And—but the fact that I accept that and
passionately believe it does not mean that everything the government
does in confidence and in secret should not be in confidence or in
secret. The problem is where to draw the line.
So, yes, I would
criticize the Obama administration, in general, for being overly
concerned with secrecy and not being sufficiently transparent. The point
I made earlier about overclassification is a good example. But at the
same time, I do recognize that there are situations in which secrecy is
critical, and the problem is being able to discern when that’s necessary
and when it’s not. And to do that, you need to have people within the
debate who are internally challenging the necessity for secrecy and
confidentiality. I don’t think the Obama administration has done a very
good job of that.
AMY GOODMAN: Chris Hedges, just 30 seconds, and I know that you were attending the Bradley Manning trial, but linking the two.
CHRIS HEDGES: Well,
we’re talking about the death of a free press, the death of a civil
society. This is far beyond a reasonable debate. We make the East German
Stasi state look like the Boy Scouts. And if we don’t wrest back this
power for privacy, for the capacity to investigate what our power elite
is doing, I think we can essentially say our democracy has been snuffed
out.
