Upending the NSA’s illegal data sweep is a major triumph for the press, but claiming credit would mean crediting Edward Snowden

Week of May 24, 2015

The National Security Agency’s bulk capture of the phone records of millions of U.S. citizens was sweeping and invasive. Now we know it was also illegal, since a federal appeals court has said so. Meanwhile the man who exposed the program, the former NSA contractor Edward Snowden, is still a fugitive in Russia and faces charges of espionage if he returns to this country.

Snowden’s June 2013 leaks won the Pulitzer Prize for The Guardian of London and The Washington Post. Yet the U.S. news media have been slow to recognize—let alone applaud—his contribution, the single most effective and beneficial act of journalistic defiance in recent memory.

The New York Times report on the court’s May 7 ruling declaring the data collection illegal was especially circumspect, with Snowden’s name not even mentioned until paragraph 29. (The Guardian, on the other hand, put him in the headline.)

There would’ve been no legal challenge if not for Snowden. Nor would the House of Representatives ever have voted decisively to halt the program, since Congress wouldn’t even have known about it.

The fate of the program is still the subject of mud-wrestling on Capitol Hill, but there’s no question that Snowden’s impact has been historic. It’s hard to recall a comparable instance where media disclosures produced such a dramatic shift in public attitudes and such a repudiation of official policy.

Press histories extol the Pentagon Papers case, where The New York Times resisted White House pressure and published a secret history of Vietnam-era bungling and deceit. But the war went on for three more years, unimpeded by having the struts of its dubious legitimacy kicked out from under it.

Likewise, The Washington Post’s Watergate reporting is remembered as having forced a thuggish and unprincipled man from the White House. But what the paper’s work really did was to tee up, and to nourish, two more years of sustained efforts by criminal courts and bipartisan congressional committees.

And now? The unanimous decision May 7 of a three-judge panel of the U.S. 2nd Circuit Court of Appeals came in a suit filed by the American Civil Liberties Union that was triggered by Snowden’s leaks to the Guardian and the Post. The leaked documentation revealed that the NSA had been surveiling millions of Americans without cause, without warrants, and with meager statutory—let alone constitutional—authority.

The judges concluded: “The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here. The sheer volume of information sought is staggering.”

So this is a signature moment in press history, where strong reporting exposed the excesses of the post-9/11 security state to public scrutiny. Its consequences continue to ripple through the political system.

In light of its historic importance, why haven’t the media been jubilant? Where is the insistence that the media’s benefactor, Edward Snowden, be repatriated and pardoned—let alone, welcomed home and thanked?

I think the media are reticent because they don’t have the institutional spine to confront the propriety of Snowden’s indictment for espionage and challenge the administration’s insistence that his leaks have harmed, or could harm, legitimate national security concerns.

So they end up in a defensive crouch, awarding prizes for their own exposure of the bulk data collection while ducking any corresponding obligation to defend the leaks that made the exposure possible.

The media’s position is incoherent and illogical, though no more so than the

Obama administration’s defense of official secrecy.

Former Army data clerk Chelsea Manning’s sins in giving Wikileaks reams of defense and diplomatic files—most of them unclassified, none of them designated higher than “Secret”—won him 35 years in prison. Jeffrey Sterling, the former CIA officer who was convicted of telling a New York Times reporter about an embarrassing intelligence screwup that may have advanced Iran’s nuclear program, got three and a half years.

Compare that with the way administration favorite David Petraeus was handled for his security breach. As Pentagon Papers whistleblower Daniel Ellsberg has pointed out, Petraeus, while CIA director, gave his girlfriend eight black books containing information that was classified as far more secret than “Top Secret”—hugely more sensitive than anything Manning leaked.

The material Petraeus gave his lover wasn’t some private sharing; she was his biographer. Confronted, he lied to the FBI about his wrongdoing.

Yet he was allowed to plead guilty to a misdemeanor and serve not a minute behind bars.

Maybe that’s OK: no harm, no foul, Petraeus’ breach caused no damage. But if that’s the standard, why not apply that principle to everybody? Let’s figure out whether anybody has actually been hurt by the Chelsea Manning and Edward Snowden leaks. It has been years, and whether the harm—if any—has been outweighed by the value of the disclosures ought to be plain.

These are the questions journalists are uniquely positioned to answer. And in the meantime they are fully entitled to celebrate a moment when strong reporting, and a determined source, brought outrage and reform.


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