In his recent post, “Is Snowden Obliged to Accept Punishment?,” Michael Glennon takes on Edward Snowden’s critics who argue that the former contractor’s unwillingness to come before American courts indicates an absence of the courage, and constitutes a violation of the norms of civil disobedience.
The theory Snowden’s critics are operating under, Glennon writes, is that
the tradition of civil disobedience requires that the disobedient accept the penalty that the law prescribes. This is necessary to ensure sincerity and to reaffirm one’s respect for and commitment to the rule of law generally, from which Snowden has surely benefited and the validity of which he does not contest. Acceptance of punishment is part of an implicit social contract.
This theory, he asserts,
has a specious attractiveness; however, its premises are arbitrary, its logic shaky, and its implications pernicious
Glennon forwards two arguments in defense of this charge, both questionable.
The first argument is that there are multiple traditions of civil disobedience. According to Glennon “some disobedients, such as Henry David Thoreau, Mahatma Gandhi, Martin Luther King, and Rosa Parks, did not seek to evade punishment,” but others including “abolitionists and the secretive Sons of Liberty” expressed their dissidence covertly. Snowden, Glennon contends, simply belongs to the latter tradition.
But were the latter really engaged in civil disobedience? Arguably their actions amounted to justified rebellion, not civil disobedience. Their actions expressed a wholesale rejection of the political, legal, and social structure of colonial America and the South, respectively. The events Glennon refers to were harbingers of war.
Glennon’s second argument is in the same vein. The alternative traditions of civil disobedience he identifies not only permit covert violations of law, they apparently also allow a refusal to submit to punishment:
Disobedients have not, moreover, uniformly accepted punishment simply to affirm their good faith or continuing commitment to the rule of law. Some have done so and even actively sought out punishment because public arrest, trial, and imprisonment advanced their causes. Publicizing brutality, unfairness, or other injustice has long been a political tactic designed to generate support.
Glennon does not list examples of this “tradition.” But leaving this aside, the underlying claim itself is doubtful. Publicity might sometimes be a desirable side effect of accepting punishment, but was that the primary reason that Gandhi or King went to prison? Were they not primarily seeking to shame their opponents, and to underscore the strength of their convictions?
So, to summarize, to save Snowden from critics’ disdain—to show that he ought to be considered a civil disobedient in spite of his evasion of American courts—Glennon posits that the great exemplars of civil disobedience acted publicly out of compulsion, and accepted punishment as a publicity stunt. Is there really no better way to defend Snowden’s Moscow hideout than by casting a shadow over the actions of Gandhi, King, and Parks?
Suppose the multiple traditions of civil disobedience that Glennon identifies do in fact exist. Even so, his defense of Snowden is still unconvincing, for it is not clear that Snowden is actually engaged in civil disobedience.
An individual engaged in civil disobedience refuses to obey in order to express moral opposition to a law that she considers unjust. A crucial feature of such an act is that the disobedient person appeals to the conscience of the authorities—in a democracy, her fellow citizens—urging them to overturn an unjust law or provision. She does not take the law into her own hands. Another feature of such an act is that the cost of disobedience is borne principally by the dissenter. Rosa Parks’ refusal to give up seat did not endanger the other passengers on the bus, much less the United States.
Snowden’s case meets neither of these criteria. He acted unilaterally, leaving fellow citizens with no choice over whether and what kinds of classified information ought to be disclosed. He didn’t appeal to them; he decided for them. More to the point, Snowden’s actions have endangered his fellow citizens by indiscriminately revealing methods and sources, and exposing intelligence operations whose lawfulness and appropriateness is not in doubt. The equivalent would be Rosa Parks shooting out the tires of the bus, and then setting fire to Montgomery for good measure.
For these reasons, Snowden’s actions are, strictly speaking, those of a political representative or revolutionary, not a civil disobedient. Had he limited his disclosures to clear instances of serious wrongdoing, that would be one thing; but he has in fact sought to bring the house down. And this is why he ought to make himself accountable to the American people. Whatever the norms of civil disobedience might be—whether they require accepting punishment or not—is beside the point. Snowden should be willing to potentially face a jury of his peers not because of what Gandhi or King did, but out of respect for his fellow citizens, whom he has imperiled in pursuit of his understanding of what is right and wrong. An unwillingness to submit will be evidence then, not of cowardice but of hubris.