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This is the story of Edward Snowden's big fucking mistake. It's a tale, I believe, that speaks of youth, ignorance or the lack of diligence, and, most importantly, the need for people in Government to use the whistleblower system.


The first chapter of the story features NSA Director James Clapper. In testimony before the Senate Intelligence Committee in March 2013, Director Clapper testified as follows (transcript below):

SENATOR WYDEN:  "I don't really know what a dossier is in this context, so what I wanted to see is if you could give me a yes or no answer to the question, 'Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"


SENATOR WYDEN:  "It does not?"

DIRECTOR CLAPPER:  "Not wittingly. There are cases where they could inadvertently, perhaps, but not wittingly."

If you were a young man untrained in Constitutional Law and unaware of the machinations of an intelligence committee hearing--and, by virtue of your employment, you knew that the Government was saving unidentified telephone numbers (and the numbers those numbers called) for millions of Americans--you might be shocked by that testimony. You might think that Congress wasn't getting the truth! Or, that Congress could not possibly provide oversight for an intelligence community that was hiding its secret programs from it. That's, in fact, what Edward Snowden thought:
"I would say sorta the breaking point is seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress. There's no saving an intelligence community that believes it can lie to the public and legislators who need to be able to trust it and regulate its actions."
(emphasis added) (4:46 of the linked video). This is from Snowden's interview with German television, and specifically, a question about what was the "decisive moment," for him, that required his stealing all those documents.

Now, we all know now that not only did Congress have particularized knowledge of the NSA metadata program, but that it was providing oversight for it. Here is what James Clapper wrote to Senator Ron Wyden well after his testimony in March 2013:


(Screengrabs of actual letter sent from Clapper to Wyden; a link to Clapper's letter is on Senator Wyden's Government website here.) In his response to Clapper's letter, Senator Wyden did not deny knowledge of the NSA metadata program at the time of the Clapper testimony, nor did he deny Clapper's assertion that Wyden held the belief--at least at the time of the testimony--that the NSA metadata program was Constitutional.

Given the brouhaha that was occurring at the time of Director Clapper's letter to Senator Wyden and Wyden's response to Clapper, it is almost a given that if Clapper's statements about Wyden's knowledge and understanding were untrue, Wyden would have put that in his response. That's what a careful senator would do.

That brings us to the end of Chapter One, a chapter about a young man who didn't fully understand what he was watching as the Director of the NSA testified before the Senate Intelligence Committee. Of course, without the need to foreshadow, we all know that the young man took some pretty drastic actions based upon this misunderstanding. Already knowing the end to the story, then, let's start Chapter Two, which deals with questions about the young man's ignorance or lack of diligence.


Most lawyers will tell you that you don't go to law school to learn the law, you go to law school to learn how to research the law, and then, only after you have found the relevant law, how to apply it to the present circumstances. First and foremost, you have to research and find the applicable law. Now, in the case of the young man, Edward Snowden, it is undisputed that he had no substantial legal training. When did he first learn about the United States Supreme Court case of Smith v. Maryland, 442 U.S. 735 (1979)?

In Smith v. Maryland, the Supreme Court decided, some thirty-five years ago, that Government actors could obtain telephone metadata without it being an "illegal search" under the Fourth Amendment. The holding was based upon the belief that an individual gave up their privacy to that information when that individual transmitted the information to a third party, in that case, the telephone company.

It can be easily argued that the NSA metadata case is much less intrusive than the circumstances in the Smith v. Maryland case. In the Smith case, the Government knew exactly who they were dealing with, a guy called Smith. Thus, information about Smith's calls were somewhat invasive into his privacy. In the case of anonymous NSA metadata, on the other hand, the Government does not know who the telephone numbers belong to, or to whom they are calling. Moreover, the use of the telephone numbers in the Smith case was to find out who Smith was calling. The NSA uses the metadata, not to find out who is calling whom, but to create a giant haystack, so they can find out which terrorists are calling other terrorists.

Should Edward Snowden have known this before he went public with an estimated 1.7 million documents? Well, it is likely that 95 to 98 percent of lawyers don't remember the Smith v. Maryland case from their law school days. But ignorance of the law is never a defense you want to make to a court. Snowden should have researched the law or found an adviser who could. Why didn't Snowden's advisers tell him about Smith v. Maryland? Or, for that matter, why didn't they tell him how congressional intelligence hearings sometimes work? If you are going to expose a secret procedure and claim that it is unconstitutional, shouldn't you (or your adviser) research that question first?    

In closing Chapter Two, you can see that Edward Snowden was under a misapprehension of the law. As we saw in Chapter One, he was unaware of important facts. So, before stealing 1.7 million documents belonging to the NSA, Snowden was ignorant of both the law and the facts.  


This chapter deals with happy endings. How could Edward Snowden have received a happy ending to his tale? He could have followed established whistleblower procedures. If he felt that that wasn't going to work, he could have modified them slightly and, most likely, not been faced with decades of prison. In our system--and it is a system and not a pooling of individual anarchy and chaos--the basic questions are: (1) Who decides, and (2) How should they decide. In a Democracy, officials are elected who appoint judges to determine questions of constitutionality. They also appoint officials to determine what should and shouldn't be classified and kept from the public at large. Legislators have also provided a system in which whistleblowers can bring attention to issues involving governmental illegality or waste.

That whistleblower system was effective enough in 2012 to encourage more than one thousand people to contact the Office of Special Counsel. Thousands more contacted the Securities and Exchange Commission that same year. Also well before Snowden, President Obama received praise from the Government Accountability Project for fighting for and ultimately enacting the Whistleblower Protection Enhancement Act of 2012, which included among its reforms provisions that would have applied to Snowden had he elected to follow that route, including:

"... federal employees now are protected (in addition to already-existing scenarios) from reprisal if they: are not the first person to disclose misconduct; disclose misconduct to coworkers or supervisors; disclose the consequences of a policy decision; or blow the whistle while carrying out their job duties."
Specifically, there was a mechanism in place since 2008 for Snowden to blow the whistle in a way that did not harm the country and still got the job done. This was the specific regulation in effect at the time he left for Hong Kong (highlighted in pink):


Additionally, there has been whistleblower protection for DOD contractor employees since at least 2006 found in the Code of Federal Regulations.  Title 48 of the Code of Federal Regulations, Subpart 3.9 reads as follows:


Statement of Acting DOD Inspector General Gimble, Feb. 14, 2006, at p. 5.  


This story is based on an assumption, an assumption that Edward Snowden was telling the truth when he said that a driving force behind his actions was the testimony of James Clapper. It is possible that he is not telling the truth about that, and that he more recently decided to ride the scapegoating of Clapper, which is popular among many people. (Clapper probably doesn't poll well.) There is this bit that rings true about Snowden's claim to having decided to act because the NSA was lying to Congress: Why would Snowden claim that he based his actions on Clapper's testimony knowing that thinking people would realize his whole basis was a huge misunderstanding--unless it was the truth? I can be persuaded by further evidence.

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