[Editor’s Note: Stay tuned later today for a post from Steve Vladeck responding to this guest post by Rahul Sagar.]
In a recent post “Does Espionage Porn Make Us Stronger?” Stephen Vladeck notes that “conservative critiques” of Edward Snowden have begun to focus on his “disclosures pertaining to lawful intelligence activities.” Such disclosures have been labeled “espionage porn” on the grounds that the primary purpose of the disclosures has been to titillate readers. Such disclosures could not have been made with a view to bolstering public debate, the argument goes, because they do not expose illegality.
According to Vladeck these critiques make a simple error, namely, they conflate legality with morality. That is, critics like Marc Thiessen are mistaken in believing that it was clearly wrong for Snowden to disclose a lawful surveillance program. It may well be illegal to disclose such a program, but it need not be immoral. Whether Snowden did the right thing—morally speaking, at least—depends on whether his disclosures can be said to be of “public value.” As Vladeck puts it:
the “espionage porn” critique is both overstated and undernuanced. Whether specific disclosures are meaningfully contributing to public discourse does not depend upon whether the disclosed government activities are “legal”; the question is whether they are activities that, whether because of their means or ends — or potential consequences — the American people deserve to have a voice in debating.
In Vladeck’s view, some of Snowden’s disclosures do have “public value.” He does not, however, specify which ones, and why. Instead, like President Obama, he asserts more generally that “Thanks to Snowden, the American people will have more awareness of — and more of a voice in shaping — the current and future scope of U.S. foreign intelligence activities.”
I see at least three problems with this claim.
First, history provides little reason to be optimistic that “espionage porn” will help the public shape intelligence policies. Snowden is not the first to expose lawful intelligence programs. The practice is as old as the Republic (on this see books by Gabriel Schoenfeld and Stephen Knott). Recall in particular the numerous instances during the Cold War when reporters like Jack Anderson and Seymour Hersh revealed programs that were not unlawful. If “espionage porn” fosters an aware and informed citizenry, then why haven’t prior disclosures of this variety had a suitably ‘educational’ effect? Why are Americans so shocked to discover what the NSA can do when James Bamford had outlined some of its capabilities more than two decade ago? Perhaps Americans are, like so many peoples, rather forgetful. This fact may be lamented, but it does raise a question over the justification that Vladeck offers for condoning “espionage porn.”
Second, the claim that “espionage porn” will help the American people shape intelligence policies is also problematic at a conceptual level. This is because the content of such policies depends on fast moving events that are usually beyond the grasp of ordinary citizens (and sometimes even interested observers). Consider, for example, Snowden’s disclosures concerning surveillance of German Chancellor Angela Merkel. Vladeck sees value in the disclosure on the grounds that “there can be little question that, as a public policy matter, the American public may care a great deal about foreign intelligence programs that so directly implicate foreign policy and diplomatic relations.” I am not certain that the American public cares about foreign relations to the degree Vladeck presumes. But even assuming that they do, how far can “Merkelgate” really help them shape policy in the future?
Assume for a moment that “Merkelgate” has led the American people to ‘decide’ that they would rather not have the United States spying on allies. Now imagine that a few months from now the White House learns that German officials may be maneuvering to dilute sanctions against Iran. What are American officials to do? Should they reopen public debate and seek public sanction for espionage in this case? And even if they do, who in the public domain has the contextual knowledge, not to mention the expertise, to apply the lessons from “Merkelgate” to the proposed espionage operation, especially when public discussion will have to be conducted at some level of generality in order to retain operational integrity?
Third, the view that “espionage porn” has public value does not fully appreciate the threat it poses to American democracy. Let illustrate the point with an example. Suppose a Snowden type figure reveals that the United States has been using a new surveillance technology to monitor the leadership of a potentially hostile country (say Russia). Much public debate ensues. On Vladeck’s view, the disclosure is then, presumably, justified (at least broadly speaking). But what if the public discussion leads to the following conclusion: it is quite appropriate for the United States to be spying on Russia’s leadership and that too using the now-disclosed method. Well, how is the cat to now be put back in the bag? In other words, a disclosure may lead to public discussion that concludes that the disclosure ought not to have been made—but who will respect the outcome of this public discussion? Vladeck’s view is biased, then, toward disclosure. But disclosure does not always equate to respecting democracy, as the example outlined immediately above shows.
The foregoing discussion implies that the “public value” of a disclosure is not unconnected to the legality of the program that has been disclosed. When individuals disclose information pertaining to classified policies, they must be confident that their unilateral and irreversible move will not be regretted by their fellow citizens. This is likeliest to happen when they disclose information that evidences illegality. Should they disclose policies that are not unlawful, they may well be exposing activities that their fellow citizens would, even after sustained public debate, like to see continued. In such cases, their disclosures may engender public debate, but what these actors have really accomplished is to further their own personal agendas at the expense of their fellow citizens (as Sean Wilentz observes in Snowden’s case).
If the objections outlined above are persuasive, then Snowden’s critics are right in condemning “espionage porn” because these disclosures can subvert law as well as democracy. Let me be clear: I accept that legality and morality can part ways. In other words, I accept that sometimes unauthorized disclosures can be are morally justified. This argument is very much at the heart of my book Secrets and Leaks. Where I disagree with Vladeck is on when unauthorized disclosures are morally justified. The view that individuals are justified in disclosing classified information when this promotes public discussion arguably sets the bar much too low. It risks allowing rabble-rousers and malcontents to have their way—at the public’s expense.
This is why President Obama’s statements on Snowden are disappointing. He ought not to say that Snowden’s revelations have made America stronger, because there is little reason to reach this conclusion. Instead, the President ought to emphasize that Snowden’s revelations, salacious and widely cited as they may be, are the product of a disregard of American democracy, and having driven this message home, he ought to take the battle to the other side. This strategy may provoke a media onslaught, but the office he occupies was designed to let him be more than a servant to the Fourth Estate; it was meant to give him the opportunity to speak for and to the American people, not as they are glimpsed through shape shifting opinion polls and sensationalistic headlines, but through the laws and representative institutions that embody their considered views.