On Believing 2 Things at Once About Edward Snowden

| Wed Aug. 21, 2013 11:42 AM EDT

Jeffrey Toobin is not a fan of Edward Snowden:

The assassinations of Martin Luther King, Jr., and Robert F. Kennedy led directly to the passage of a historic law, the Gun Control Act of 1968. Does that change your view of the assassinations? Should we be grateful for the deaths of these two men?

Of course not. That’s lunatic logic. But the same reasoning is now being applied to the actions of Edward Snowden. Yes, the thinking goes, Snowden may have violated the law, but the outcome has been so worthwhile. According to Glenn Greenwald, the journalist who was one of the primary vehicles for Snowden’s disclosures, Snowden “is very pleased with the debate that is arising in many countries around the world on Internet privacy and U.S. spying. It is exactly the debate he wanted to inform.”

The rest of Toobin's piece is surprisingly unpersuasive, but the question he asks above is a worthwhile one. Leaving aside the obvious provocation of his assassination analogy, he's asking whether any of us think that we should actively approve of what Snowden did just because we like the results. And if we do, does that mean we think that anyone working in the intelligence community who dislikes America's surveillance policies should feel free to disclose whatever information they feel like?

For anyone who's not already a full-blown Snowden hater or defender, this may seem like a troubling question. But it shouldn't be. You might not know this if you subsist on a diet of cable news shouting matches, but it really is possible to believe two things at once:

  • Intelligence agencies are a necessary fact of life and governments have a legitimate interest in keeping their operations secret. Anyone who works in the intelligence community knows this, and knows that security breaches are a serious business that will lead to prosecution.
  • Americans have recently learned a lot about how pervasive our surveillance operations are, and it's laughable to think we would have learned any of it if Snowden hadn't done what he did. In the end, even if he's made some mistakes along the way, he's done a public service.

I believe both these things. I believe that 30-year-old contractors shouldn't be the ones who decide which secrets to keep and which ones to reveal. I also believe that, overall, Snowden has been fairly careful about what he's disclosed and has prompted a valuable public conversation.

So how do you prevent an epidemic of Snowdens while still allowing the salubrious sunlight of the occasional Snowden? The answer to the former is that intelligence workers need to be afraid of prosecution if they reveal classified documents. It can't be a casual act, but a deeply considered one that's worth going to prison for. The answer to the latter is that prosecution needs to be judicious. There's no question in my mind that Snowden should be prosecuted for what he did. That's the price of his actions. But he shouldn't be facing a lifetime in a Supermax cell. The charge against him shouldn't be espionage, it should be misappropriation of government property or something similar. Something that's likely to net him a year or three in a medium-security penitentiary.

In other words, I don't think Toobin's implied question is as hard as he thinks it is, especially since the rest of his piece is remarkably unconvincing about the possible damage done by Snowden. The bottom line is that I'd like to see Snowden come back to America and make a public case by standing for trial. It would be a sign of how strongly he believes that he was right to do what he did. But I can hardly expect that under the current circumstances. The wild overreaction of my own government to the notion of allowing the public even the slightest knowledge of what it's up to has made it impossible.