With pundits quickly staking out sides in the "hero or villain" debate over Edward Snowden, it should be clear to all but the most ardent authoritarians or partisan Administration defenders that the NSA has overstepped the bounds of decency, if not legality. While it may not be quite the threat to democracy that some think it is, collecting metadata on the phone and internet activities of every single American is insanely excessive, if not downright counterproductive. It certainly provides the opportunity for a dystopian state totalitarian apparatus to emerge in the wrong hands (or even the right ones.)
That said, I also share the discomfort of many in the idea that a single unelected 29-year-old Ron Paul fan and employee of a private NSA subcontractor (with the help of a media figure or two with their own agendas) gets to decide which state secrets should be secret and which ones should not be--particularly when those state activities appear to not only be legal, but to have the imprimatur of all three branches of government. Comparisons to the Pentagon Papers ring a little hollow for me because I see lying to Congress, the American people and the world about matters of war and peace to be impeachable offenses as well as violations of international law. Legal metadata collection with Congress' knowledge is a trickier issue.
Of course, the simple counterargument to that view is that Congressional oversight of these problems is so weak and ineffective as to be a joke. Dianne Feinstein in particular makes a mockery of the idea of oversight. More disturbingly, even those like Senator Wyden who don't approve of what is being done cannot make a peep about it without placing themselves in legal jeopardy. Hence, the argument goes, the need for leakers in conjunction with the Fourth Estate in the media to provide the only possible counterweight to an entire government run amok in all three branches.
As things stand now, that argument is doubtless correct. It does not, however, serve as a good precedent for democratic governance. Disgruntled employees and media figures should not be using their own moral compasses to determine which legal government activities should be exposed and which ones should not. If the moral compasses of those individuals are skewed, there can be big problems. If their moral compasses are in working order (and who's to say what that is?), there must be a better system of accountability than that--if for no other reason than that it puts the leaker, the only failsafe against government overreach in such a system, in the untenable position of life imprisonment or worse for serving a valuable public purpose. The heroic legal martyr (yet also oddly unaccountable) Mr. Snowden is awaiting just such a terrible fate in a Hong Kong hotel room. That is patently unacceptable, and the sign of a sick system.
Complex problems often require complex solutions, but one approach seems fairly simple: dramatically increase Congressional oversight. As it stands, almost one million Americans hold top secret security clearances. Yet only a select few members of Congress--often those most closely tied to the military-industrial complex--have access, often limited, to our government's most secret activities. What they do discover, they cannot speak about. That is lunacy. That a 29-year-old recent subcontractor tech in Hawaii should have access to information unknown to most members of the United States Senate is madness and terrible democratic practice. If Dianne Feinstein is unable to do the job she is supposed to do, then the system of checks and balances needs to be expanded to include more members of Congress.
Perhaps Feinstein and Wyden can't or won't take on the NSA, but it seems more probable that metadata collection on all Americans would have come to light if Nancy Pelosi, John Boehner, Bernie Sanders, Rand Paul, Elizabeth Warren and Ted Cruz all got access to that information. The natural factioning and competitive political interests involved would have almost ensured that such an overreaching and potentially unpopular program would have seen the light of day without the need for an unelected, unappointed 29-year-old programmer to take it under his own wing and make up his own mind at risk of destroying his own life. Legal jeopardy would still surround the presumed leaker in that case for obvious reasons, but any Administration would want to make sure that Congress was unanimous enough in its support for its clandestine activities that leaks would be an unlikely occurrence. Also, smarter legal minds than mine could probably find ways for Congressmembers to express their displeasure with and create accountability for clandestine activities beyond either leaking to the press or standing pat.
On this front, I find myself in uncommon agreement with Conor Friedersdorf who makes a similar case:
Congress cannot act as a check on the executive branch in the way the Framers intended when hugely consequential policies it is overseeing are treated as state secrets. The Senate, intended as a deliberative body, cannot deliberate when only the folks on the right committees are fully briefed, and the Ron Wyden types among them think what's happening is horribly wrong, but can't tell anyone why because it's illegal just to air the basic facts.The Edward Snowdens of the world should not be in the position of becoming martyrs to bring unethical activity to light--nor should we be depending on the caprices of the Edward Snowdens to determine which activities should be brought to light or not. We elect people through very expensive and time consuming processes to do this job for us, and we pay them well. The NSA should be under their thumb, and they in turn should be under ours at the ballot box.
Our senators have literally been reduced to giving dark hints.
And the House of Representatives? Members are up for reelection every two years because the body is supposed to respond to the will of the people. But by some accounts, the people are only now finding out about surveillance that some House members signed off on three or four election cycles in the past.
Not that we know all the details even now.
It's one thing to keep the identities of CIA agents and the location of our nuclear arsenal classified. But this is something different. The national-security state, as currently constituted, is removing many of the most important moral and strategic policy questions we face from the realm of democratic debate and accountability. In a real sense, our current approach is preventing our system of government from functioning in very basic ways that the Framers intended.