No Freedom Act For Snowden

Edward Snowden virtually attending the 2015 International Students for Liberty Conference.
Photo by Gage Skidmore.

History will note the irony that Congress would never have passed the USA Freedom Act without Edward Snowden - whose own prospects for freedom in the USA are extremely distant at best.

Almost exactly two years after Snowden first revealed information about the National Security Agency’s surveillance of phone metadata collected in bulk, along with other far-reaching and previously secret data collection programs, Congress has voted to curtail some of the agency’s powers. On Tuesday, the Senate sent the USA Freedom Act to President Obama’s desk; the president promptly signed the bill into law.

The USA Freedom Act will restore the three provisions of the Patriot Act that expired two days prior to its signing, but with new limits on what the NSA can collect and with added transparency and new oversight. It reflects a growing consensus that security and privacy need not, and should not, be treated as an either-or proposition.

“National security and privacy are not mutually exclusive,” Sen. James Lankford, R-Okla., told The New York Times. “They can both be accomplished through responsible intelligence gathering and careful respect for the freedoms of law-abiding Americans.”

In a very real way, Lankford’s position, and the USA Freedom Act itself, would not have been possible without Snowden. Snowden’s disclosures gave us the opportunity to debate how much power and privacy we want to yield to our security agencies in the name of the fight against terrorism. It is a debate we badly needed, and reasonable people can differ on the answers. But it is also a debate we could not have had before Snowden acted, because the only people who knew what was happening were determined to make certain their actions were not called into question. The bipartisan Congressional majorities in both houses have demonstrated that, as far as American democracy was concerned, the lines were being drawn in the wrong places.

Opponents of the USA Freedom Act, including Senate Majority Leader Mitch McConnell, R-Ky., argued that our intelligence agencies have acted appropriately and in our manifest self-interest by accumulating such data as exactly who calls whom, anywhere in America and overseas - as if the only privacy interest anyone would legitimately have is in the content, rather than the fact, of a contact. (Not to mention that Snowden has also alleged that the FBI and the NSA sometimes warrantlessly sweep up message contents as well.) The new law gives the NSA about six months to stop collecting phone metadata.

“Nobody’s civil liberties are being violated here,” McConnell said from the Senate floor.

Want to get a first-hand account of the agencies’ current respect for civil liberties? Ask David Michael Miranda.

Miranda, whose partner Glenn Greenwald was one of the journalists most closely linked to Snowden’s revelations, found himself detained at length in London’s Heathrow Airport a few months after the first of the Snowden revelations arrived. Britain’s Government Communications Headquarters, or GCHQ, detained Miranda under British anti-terror laws during a layover as he traveled from Berlin to his home in Rio de Janeiro. He was held without access to a lawyer, and his electronic devices were seized. Interrogators forced him to give up his passwords. Greenwald claimed the incident was “clearly intended to send a message of intimidation” to journalists working with Snowden. The Obama administration remained carefully silent about whether it sought Miranda’s detention or the subsequent seizure of his electronic data.

Or ask Snowden himself. His critics rightly point out that true civil disobedience carries with it an obligation to face the consequences of the law, as Daniel Ellsberg did when he disclosed the Pentagon Papers. But Snowden justifiably fears that those consequences will be neither fairly applied nor impartially administered. Ellsberg was free on bail pending his trial and could participate in his own defense. Snowden has good reason to assume that the minute he puts himself within reach of American or allied law enforcement, he will be jailed, his contact with attorneys will be limited and monitored - all in the name of national security, of course - and the government will seek the harshest possible punishment, in an effort to deter anyone from ever doing what Snowden did.

But what Snowden did made the USA Freedom Act possible. Is that what we are trying so desperately to deter?

Snowden’s only realistic hope to return home is a presidential pardon. That won’t come from this president, and it won’t come from the next one either, no matter who is elected in 2016. The possible exception, in the unlikely event of his victory, is Rand Paul, who has made opposing NSA surveillance a central part of his campaign. My guess, however, is that it will take at least a generation’s time for the political climate to cool enough, and for the struggle against radical terrorism to resolve enough, to make a pardon even conceivable. For now, Snowden remains holed up in Russia, relying on asylum “in a country which is on a crusade against Internet freedoms,” as journalist Andrei Soldatov observed. It seems clear that if Snowden will ever have the opportunity to return home, it will not be soon.

In the meantime, we must witness the spectacle of the man responsible for making the USA Freedom Act possible relying for his own freedom on the political sanctuary of one of the most warped and least free non-Communist nations in the world.

History will note the irony.