By Kimberley Brownlee
Since he exposed himself in June 2013 as the source of the NSA leaks to the Guardian and Washington Post, former CIA analyst Edward Snowden has been called many things including a hero, a traitor, a whistleblower, and a civil disobedient. The last of these labels tracks a much-debated philosophical notion and a practice made famous by Gandhi, Martin Luther King Jr., Aung San Suu Kyi, and others. Paradigmatically, civil disobedience is a constrained, conscientious, and communicative breach of law that aims to raise awareness about a cause and bring about lasting changes in law and policy. Not all civil disobedients champion worthy causes. But, their self-restrained willingness to stand up for what they believe despite the personal risk means that their disobedience should be taken seriously and tolerated if possible. Now, is Edward Snowden a civil disobedient? And if he is, how should society and the law treat him?
In his favour, Snowden willingly exposed himself to considerable personal risk by leaking information about the NSA programs Prism, Boundless Informant, and XKeyscore, which collect and analyse massive amounts of personal data on Americans and foreigners. Moreover, Snowden acted non-evasively by revealing himself as the source of the leaks. Finally, by his own account, he acted with the aim, and he certainly achieved the effect, of initiating a public debate about the legitimacy of NSA and GCHQ activities.
But are Snowden’s leaks sufficiently constrained to warrant the label ‘civil disobedience’? His acts were neither violent nor coercive in any straightforward sense, but they’ve had repercussions for his society and the global community. Just how serious are those repercussions? Some US officials, such as NSA Director Keith Alexander, say Snowden’s disclosures have done irreversible and significant damage to the United States and its allies (whose citizens are, of course, among those under surveillance). But other US officials, such as newly appointed National Security Advisor Susan Rice, say the diplomatic consequences at least are not that significant. Given US officials’ political interests in keeping these programs secret, their word isn’t the best gauge of the seriousness of Snowden’s acts. It’s worth remembering that similar complaints about seriousness were made against civil rights activists in the 1960’s. Martin Luther King, Jr. stated then that “Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive.” In short, the responsibility for questionable, rights-intruding programs that have little judicial or legislative oversight lies with those who implement them, not with those who seek to expose them for public debate.
Other supposed points against Snowden’s credentials as a civil disobedient are, first, that his flight from the United States to Hong Kong in May and his flight to Russia in July in pursuit of temporary asylum seem inconsistent with a civil disobedient’s willingness to accept the personal risks of dissent. Second, as pointed out by the US government, there seems to be an inconsistency between Snowden’s declared commitment to transparency and his choices of Hong Kong and Russia as places of refuge.
These criticisms have bite if we embrace a narrow account of civil disobedience such as John Rawls’s, which says that civil disobedients must be willing to accept not only the risk of punishment, but punishment itself to show that they have a broad fidelity to the legal system and are unlike ordinary offenders. By evading US authorities, Snowden has shown that he’s unwilling to do this. But Rawls’s narrow view of civil disobedience can be challenged. The willingness to accept punishment often doesn’t reflect fidelity to a legal system. It reflects instead a choice of strategy since punishment can bring attention to both a cause and its champions. Moreover, Snowden hasn’t had much choice about his protectors. He’s reportedly applied to 27 countries for asylum without success and he faces serious charges in the United States, so his conscientious commitment to transparency isn’t necessarily in doubt. But now that he has successfully influenced the public perception of his acts and has limited the United States’s options in how it treats him, he’d do well to return to face the criminal justice music despite the personal costs it’ll bring. Doing so would confirm that his acts are civilly disobedient.
Facing the music may not be as jarring as Snowden expects because, although many judges and juries view civil disobedience with scepticism, not all do. Some recognise that civil disobedience is a vital practice in a democracy. It can rectify deficits in democratic debate, can jolt us out of our complacent assumptions, and can bring about much needed moral revolutions. Many judges praise the character of the civil disobedients they see and do what they can to soften the blow of the law. May it be so for Edward Snowden.
Kimberley Brownlee is an Associate Professor of Legal and Moral Philosophy at the University of Warwick. She is the author of Conscience and Conviction: The Case for Civil Disobedience (OUP, 2012), which she has discussed in interviews with 3:am Magazine and New Books in Philosophy. She is currently working on a book provisionally titled No Entry: The Evils of Social Deprivation and the Ethics of Sociability.
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