You Asked, So....

On the Miranda, Greenwald, Guardian Latest

Longtime regular readers wanted my take on the NSA latest, so here it is.

Some of my regulars readers who go back to my Guardian days have been asking—nay demanding—that I weigh in on the latest round of news on that front. I’m not sure I understand the obligation, but I aim to serve, so here you are.

Recent events haven’t really changed my previous position. I think Snowden broke the law and behaved egregiously; on the other hand, this is what it took to open up this badly needed debate, so in that sense I applaud him, and Glenn Greenwald and Laura Poitras, for making that happen. Somewhat contradictory positions, sure. The world’s a complicated place.

I just can’t see Snowden as a hero. There’s a lot of difference to me, morally if perhaps not legally, between Snowden and Daniel Ellsberg. In the Pentagon Papers case, Ellsberg had a longstanding security-cleared gig at the Rand Corporation. He was a believer who slowly rose to outrage over Vietnam, and he decided to break the law. Snowden took a job expressly to break the law. While it’s surely true that Snowden went through a similar arc of disillusionment, I think it’s a different thing to apply for a job swearing an oath that you’re going to do X but knowing all the time in your heart that your intention is to violate and destroy X (views on this will depend of course on how evil the beholder thinks X is).

Plus, Ellsberg turned himself in. He sought to remain anonymous, but once he was named, he pretty quickly reported to authorities. He was prepared to pay the price for his actions. He stood trial. It lasted 89 long days in the spring of 1971 before the judge declare a mistrial because of “improper government conduct” (White House plumbers breaking into Ellsberg’s psychiatrist’s office, and other acts) and made Ellsberg a free man.

Snowden has made the decision not to face justice. I’m well aware that lots of people are now pointing to Bradley Manning’s sentence and saying well, small wonder. But being willing to pay the price is part of civil disobedience. If Martin Luther King had run off to Mexico instead of serving his time in that Birmingham jail, what kind of leader would he have been? (I’m not making an exact analogy, just a point.) That Snowden has chosen a despotic country whose leader is thwarting both democracy and the country of Snowden’s birth in a range of ways isn’t the heart of the matter, but it doesn’t help.

Now to Miranda and The Guardian. It seems to me difficult to defend detaining Miranda under the law that was cited. He’s obviously no terrorist. If the defense is that the law is written broadly enough to allow his detention, then I say it’s written too broadly. At the same time, secrets were stolen, the law was broken. The British government has a right to see if it can get that information back. Any government does.

I don’t understand why Miranda should be shocked that he was detained. He was carrying encrypted thumb drives through the customs point of a country whose state secrets his partner had helped expose! And a country with no First Amendment (not that that would matter in the moment anyway—it would come into play later, once the issue got to the courts). If that had been me, I’d have fully expected to be detained. And apparently he was offered a lawyer, as The Guardian itself reported Monday, so at least that basic right, which I gather in Britain goes back statutorily to 1836, was honored.

[CORRECTION ADDED ~10AM: He didn't go through customs, he was just transiting from one flight to another. It doesn't make any practical difference, as Greenwald himself noted in a tweet this morning, but I do regret making the error.]

So I can’t say I’m outraged at that. I am however outraged at the smashing (pointless, as Alan Rusbridger mordantly noted) of the paper’s hard drives. That’s black and white; prior restraint with a hammer. Rusbridger and the paper have done nothing wrong that I can see, and a lot of things right and even brave, and I hope they keep doing them.

As for Greenwald, well, he’s insufferably self-righteous and always has been, of course, but that’s not the point (although it may someday become the point, at least to the authorities). The point now is that on balance, I think it’s clear that what he’s doing is in the public interest. So while not really defending him as a human being, I certainly defend his reporting.

But: He and Poitras, and my friends at the Guardian for that matter, have to be prepared to pay a legal price for going down this road if it comes to that. That’s the responsibility that comes with the right to publish. In the summer of 1971, editors and writers at the Times and the Post were prepared for the threat of jail for publishing the Pentagon Papers. When they published, they most certainly didn’t know that they weren’t going to jail. The Supreme Court ruled in their favor, but they didn’t know that when they published.

Today, if any of the people named above is arrested for this work, I will obviously be on their side and will hope whatever court has the matter rules in favor of the right to publish. I think there are legitimate state secrets and legitimate ends for certain types of surveillance, especially in this day and age. But the public interest in knowing something about their extent so that abuses can be curbed is manifest, and that’s the bottom line.