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First, let me get it out of the way that I support Ed Snowden, so you'll need to read a little further.

Ed Snowden broke the law.  Section 215 of the Patriot Act allows the FISA court to approve applications that require businesses to turn over business records.  The FISA court apparently read this authority as being broad enough to require telecom companies to turn over all "meta" information in their possession about all Americans' activities all the time.  So:  (1) Congress passed the law; (2) the Executive branch exercised its authority under the law; and (3) the Judicial branch approved the exercise of that authority.  All three branches of government agreed that this information gathering was legal, and Ed Snowden broke the law by revealing it.

More importantly, some commenters note, Ed Snowden did not reveal illegal conduct by the government, and thereby can't be considered a true "whistleblower."  Thus, if he revealed confidential information and is not a whistleblower, there is no excuse for him breaking the law.  

So what's the problem with this situation?  Let's see...

The problem with this situation is:  The law allowing the intelligence agencies to gather information about all Americans was made in secret.

But wait, you say, we're talking about the Patriot Act, which was properly passed by Congress in open session.  It was reported in newspapers.  How can you say that it was made in secret?

Well, when any law is passed by a legislature, it starts with a certain meaning.  But that meaning evolves and is molded by how people use the law, and how courts interpret the law.  You can't find a requirement for law enforcement to provide Miranda rights anywhere in the Constitution, and yet the Constitution as interpreted requires that Miranda rights be provided.

Normally this process is transparent to the public.  Everyone can see the search warrants being served.  Everyone can watch O.J.'s trial on TV.  Everyone can read the Supreme Court's opinions.   But  that process of evolution and molding was done in secret here, and that makes all the difference in the world.

Let's take the relevant part of Section 215 of the Patriot Act as an example, since that's the basis for collecting information on all Americans:

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.
 Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:  

`SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.
 `(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

 

This is the law.  You can open any current edition of the U.S. Code and see it right there.  It actually seems fine to me as written.  If there is a specific "investigation to protect against international terrorism or clandestine intelligence activities" then I think the government should be able to obtain records needed to investigate that specific set of circumstances.

But that's not what happened.  Despite the clear (at least to me) intent of the law to allow records to be produced only when they have some rational relationship to an actual investigation, the process through which the true meaning of the law evolved and was molded by the Executive and Judicial branches occurred in secret.  And we ended up with the actual law (i.e., the law - as interpreted and applied) being broad enough to allow the government to collect all information about all citizens.  Cell phones track their location in order to operate.  Do you know where you were on Sunday, October 9, 2011, at 6:37 p.m.?  The government does.

Ask yourself this:  When Congress was considering the Patriot Act, if Section 215 said "The FBI shall have the right to obtain all information pertaining to all phone calls, locations and internet use by all Americans, regardless of whether or not those Americans are suspected of any wrongdoing," do you think people would have supported it?  Would you have supported it?  That's the result we got, regardless of the otherwise mundane way the law was written.  

I normally would say that I hoped the law would be challenged at the Supreme Court. The law as written seems ok, but the law as applied seems unconstitutional to me.   However, with a secret law (i.e., the law as applied here) that's not possible.  You can't appeal a law you don't know about.  Same thing with appealing a court decision.  The FISA court issued its authorization for these seizures.  Normally the losing side in a court battle can appeal to a higher court, all the way to a state supreme court or the federal Supreme Court.  The "other side" in the FISA court battle was us.  But we didn't know we'd lost.

So to those people who say Snowden revealed conduct that was perfectly legal and thus cannot be a whistleblower, I say Snowden revealed the problem of secret laws.  Laws that evolve outside of the public view.  Outside of the view of the people from whom the Constitution and all other laws in our country derive.  The people who have the direct and indirect power to change laws they perceive as improper or unfair.  

Now many of those people see what has happened to this specific law - the monster it has become - and they're angry.  Hopefully they will demand that their representatives take action to re-insert the concept of personal privacy into the important framework of counterterrorism.

Ed Snowden broke the law by revealing this information.  But he's a true whistleblower, maybe the most important one of our lifetimes, and we're better off for it.

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