Skip to main content

Who decides what's secret: Obama, or Snowden?

By Rahul Sagar, Special to CNN
updated 9:47 AM EDT, Sat June 15, 2013
Former intelligence worker <a href='http://www.cnn.com/2013/06/10/politics/edward-snowden-profile/index.html'>Edward Snowden</a> revealed himself as the source of documents outlining a massive effort by the NSA to track cell phone calls and monitor the e-mail and Internet traffic of virtually all Americans. He says he just wanted the public to know what the government was doing. "Even if you're not doing anything wrong, you're being watched and recorded," he said. Snowden has been granted temporary asylum in Russia after initially fleeing to Hong Kong. He has been charged with three felony counts, including violations of the U.S. Espionage Act, over the leaks. Former intelligence worker Edward Snowden revealed himself as the source of documents outlining a massive effort by the NSA to track cell phone calls and monitor the e-mail and Internet traffic of virtually all Americans. He says he just wanted the public to know what the government was doing. "Even if you're not doing anything wrong, you're being watched and recorded," he said. Snowden has been granted temporary asylum in Russia after initially fleeing to Hong Kong. He has been charged with three felony counts, including violations of the U.S. Espionage Act, over the leaks.
HIDE CAPTION
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
Notable leakers and whistle-blowers
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
>
>>
STORY HIGHLIGHTS
  • Rahul Sagar: Edward Snowden took on a heavy burden when he leaked U.S. secrets
  • He says Snowden could have gone to higher-ups or resigned over policies he opposed
  • Sagar: Snowden usurped the role properly played by three branches of government
  • Framers of Constitution such as Madison, Jefferson opposed leaking of secrets, he says

Editor's note: Rahul Sagar is an assistant professor of politics at Princeton University. His book "Secrets and Leaks" will be published by Princeton University Press in August.

(CNN) -- Should unauthorized disclosures of classified information be praised or condemned?

The events of recent weeks -- and the disclosures of Edward Snowden in particular -- have propelled this question to the forefront of public debate. Unfortunately, the responses have been polarized, with some hailing leakers as patriots, and others condemning them as traitors. Some have cited the Founding Fathers to make the case that Snowden was justified in revealing secrets. As is often the case, the truth is more complicated.

The first thing to bear in mind is that employees such as Snowden volunteer to be entrusted with classified information. When they disclose secrets, they are violating the trust that they have asked to be placed in themselves. And they are public employees (even if they happen to be contractors rather than permanent employees).

The Snowden Index: A glance at opinions about the NSA leaker

Rahul Sagar
Rahul Sagar

This means that when they disclose secrets, they are disobeying not only their supervisors, but also the public, whose representatives have enacted laws and regulations relating to the handling of classified information.

Finally, it is not personal secrets that these employees are revealing but state secrets. As such, their actions endanger their fellow citizens when they undermine security operations. In sum, when a government employee makes an unauthorized disclosure he is violating trust, disobeying the law and potentially endangering others. These are points worth absorbing before cheering on leakers and whistle-blowers as "patriots."

This does not mean that an employee can never be justified in making an unauthorized disclosure. An employee could uncover activity so heinous that he feels confident that citizens and overseers would want to know about it so that they could punish the wrongdoers. This could be activity that is obviously criminal or clearly immoral.

An example would be the inhumane practices employed at Abu Ghraib prison, whose disclosure led to the prosecution of wrongdoers rather than the complainant. The recent disclosures do not meet this standard though -- Snowden does not claim to have exposed criminal activity. Well, has he uncovered activity that is clearly seen as immoral by his fellow citizens? This is questionable since polls suggest that at least half the country favors secret electronic surveillance and disapproves of his actions.

NSA leaker: U.S. hacks China
Charges being sought for NSA leaker
Former U.S. spy talks Snowden's future
Trump: Snowden is bad news

Is it enough that Snowden thinks that the National Security Agency's program is morally wrong?

This argument is obviously problematic. For if Snowden is allowed to break the law whenever he likes, then why shouldn't others? Should we allow a fiscal conservative in the military to reveal a nuclear weapons programs he deems too expensive? Should a Secret Service officer who supports Greenpeace be allowed to disclose the use of a decoy Air Force One because the increased carbon emissions hurt his conscience? What these hypotheticals make clear is that when officials break the law they must be able to give reasons why we the public would want the secret exposed, not why they would want the secret exposed.

Perhaps it will be argued that Snowden thought the program violated the Fourth Amendment. It is worth asking: What happens when an employee becomes aware of a secret policy or operation whose lawfulness might be unclear to him, perhaps because the law is vague or because he worries that overseers are unaware of the activity in question?

Under these circumstances, the employee would be justified in bringing his concern to the attention of higher-ups.

Should he fear retaliation, he might even be justified in approaching law enforcement or even lawmakers. But once he knows that lawmakers and federal judges have also consented to the secret activity in question (as in the PRISM case), then the employee's options are considerably narrower.

If the policy or operation violates his conscience, then he ought to resign. But if he now decides to disclose the secret policy or operation, then he must accept the legal consequences. Why? Because by subverting the decisions of the president, Congress, and the courts, the employee has undermined the authority that the people have vested in these representative institutions.

Therefore to refuse now to submit to the law, to flee overseas, as Snowden has done, is to show contempt for democracy and the rule of law. If an employee believes that he has broken the law for reasons that his fellow citizens will understand, then he ought to be willing to take his chances before a jury (as in the Bradley Manning case).

The moral limits outlined above will be rejected by those who praise unauthorized disclosures. They will insist that unauthorized disclosures advance democracy and American values because transparency is democratic and secrecy is un-American. But this argument cannot be taken seriously.

After all, there are things that the public itself may not want to know, which is why our elected representatives have enacted laws and regulations prohibiting the unauthorized disclosure of classified information. Or are our public officials only allowed to keep secrets when unelected and unaccountable government contractors agree that they may? If that is what we believe, then why have a president? Or hold elections? Indeed, why have a Constitution? Just let the contractors run the show.

Opinion: Edward Snowden is a hero

It is also worth recalling that the Constitution was not written solely to promote transparency. There are other important values that must also be taken into account, such as the need for what the Framers called "energy" in government, i.e., the capacity to act speedily and secretly in the national interest.

This point is often forgotten by those advocating on behalf of employees who make unauthorized disclosures. "Has Thomas Jefferson's notion that the bedrock of democracy rests on an informed citizenry become as 'quaint' as the Geneva Conventions?" Coleen Rowley recently asked on CNN.

Rowley might be surprised to learn that in May 1784, Congress overwhelmingly approved a resolution declaring all diplomatic correspondence be "considered, at all times, as under an injunction of secrecy, except as to such parts of them as Congress shall, by special permission, allow to be published or communicated." The mover of the resolution was ... you guessed it, Thomas Jefferson. And what about Meriwether Lewis and William Clark's expedition, which was, as Stephen Knott notes in "Secret and Sanctioned," only one of the many covert operations undertaken by Jefferson and his successors?

Proponents of transparency also love to cite James Madison, the Father of the Constitution, who once said that "a popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy." What they don't realize is that these words come from a letter that Madison wrote to Lt. Gov. William Barry commending Kentucky's appropriations for public education in mathematics.

To see what Madison really thought about secrecy it is worth recalling the case of David Howell, Rhode Island's delegate to the Continental Congress, who leaked to the Providence Gazette news of a friendly overture from Sweden. Howell leaked the news, which had been recorded in the Secret Journal on Benjamin Franklin's request, because he believed it vindicated his stance that the United States would be able to mend its war-ravaged finances by raising new loans in Europe, and that Congress therefore did not have to impose a 5% import duty that Rhode Islanders opposed.

Claiming to have informed his constituents of "such things as they have a right to know," Howell subsequently defended his action before the Continental Congress as an exercise of "the freedom of speech." Sound familiar?

Guess how his colleagues -- our revered Founders -- reacted. Howell's response, Madison observes in his "Notes of Debates," provoked "universal indignation," because his colleagues viewed his actions as having betrayed the Swedes and presented the public with a distorted picture of the United States' financial dealings that could not be corrected without revealing "many delicate transactions." Not surprisingly, then, Howell's defense of his action was formally condemned -- on Alexander Hamilton's motion -- as "highly derogatory to the honor and dignity of the United States in Congress."

To be clear, the fact that secrecy has long been seen as being in the public interest does not give officials carte blanche to do as they like. Secrecy needs to be balanced against important civil liberties.

The central question is: Who should do the balancing? The reason the Constitution entrusts the business of balancing values to the three branches is because the officials in charge are chosen by the people and are in a position to check each other, especially with respect to secret policies or operations that it would be self-defeating to make public.

So when an individual decides to short-circuit or circumvent this careful arrangement, he must only do so when there is reason to believe that representatives from all three branches have allowed grave wrongdoing to go unchecked. Otherwise, an unauthorized disclosure is nothing more than an effort to impose one's own narrow political view on one's fellow citizens.

In such a case, it is the leaker, not state secrecy, that poses an "existential threat" to American democracy.

Follow @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Rahul Sagar.

ADVERTISEMENT
Part of complete coverage on
updated 7:34 PM EDT, Fri October 17, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 3:38 PM EDT, Thu October 16, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT