Snowdon and the Nuremberg Principle

If loyalty to the State is an insufficient defense, then disloyalty to the State is an insufficient indictment.  The world established forever at Nuremberg that immoral acts don’t have authority as a defense. If that is true, then the converse is also true: “treason” cannot be attached when the exposed secret is an immoral (or illegal) activity.  Conservatives in particular may not like this, or where it goes, but that debate is over. In fact, the American press has long sanctified this principle…Daniel Ellsberg was not a traitor, but a hero.

Listen to the very language of the current debate: “is he a traitor, or a whistleblower?” Then the discussion develops, but it typically centers on the one thing that does not matter: motive.  The media likes to personalize such things because it gives them superficial fodder for filling their daily word-count quotas, but the breathless talk of “who Snowdon is” and “what he wants” and whether he is sane or not – none of this matters one whit. I don’t know if he is a “hero”, because that does go to motive, which does not interest me.  I am interested in whether what he says is true or not.

You see, we’ve created a type, a role – “whistleblower” – that actually means “someone who exposes illegal activity”. We created this role in popular culture first, mainly on the Left, and we blessed this role with the reverse-Nuremberg immunity, as the writers romanticized corporate insiders who exposed evil capitalists – see “Silkwood”. Then we enshrined it in law, and for good or ill, that train is now running down the track.

So this debate will hinge on substance, not motive (as it should). Is Snowdon telling the truth, and if he is, is the Orwellian state he describes legal or illegal? If it is legal, he is a traitor. If it is not, he is not.

If I give away our codes to an enemy in wartime, that one is easy. But if I say to my fellow citizens “hey, your government is spying on you in ways you do not know and I believe you should know and have not authorized” – to equate these acts morally and legally is confusion.

By the way, the only thing that gives any loyalty to the government any moral force at all is individual liberty. The State has no ethical claim on me except as an apparatus by which we protect our life, liberty, and property. So the moral basis for convicting me for exposing codes to a military enemy is that I am actually endangering your hearth and plow. And that works. But go very slow before you extend that moral outrage to any leaker.  In fact, I’ll  extend the principle: any leak that endangers liberty is a crime against my fellow free people.  Any leak that protects our mutual liberties is not a crime, no matter what may written in some black-letter statute somewhere. And this has nothing to do with motive.

Don’t confuse this with another version of it, which is as relativistic as mine might sound. The current progressive left actually believes that any leak that furthers the progressive agenda is not a crime, and others are. This is very different, and deserves rejection.  It is actually what induces all the talk about motive, because as you know, on the Left, the pure motive of the State hallows it. Not so on this ground I’m staking: liberty is the objective, tangible touchstone of everything, and I think what makes my argument work where the Left bastardization does not.

This means every act of revealing government secrets has to be litigated as to substance. And if it is to be litigated, the substance can’t be secret. There is a real problem here that no-one knows how to solve and I’d suggest that once you serve on a Congressional intelligence oversight committee, no matter your party, you seem to take on the impulse to yell “traitor” quickly and before the litigation even begins. That might be because you understand just how important security clearances really are, or it might be because you understand there is no way in our legal system to litigate such events and you don’t want to have to write that law. Well, we are writing it.

Conservatives like to style themselves as patriots.  Many have been in the military, and value loyalty and discipline, and react viscerally to a violation of a security clearance and an oath.   But I’d urge you conservatives to go slow with your reflexive patriotism and consider whether this State is the same one that got into your moral DNA when you were younger.  If there is an Orwellian state, it is not immoral to expose it. In fact, the only thing that will save you from the gulag is insiders who break some sort of oath and talk about it.   Again,  those who cherish individual liberty should go real, real slow before condemning a person for claiming to know secret ways your liberties are being stolen.

Here’s my point: America, when you stripped Goebbels of his Nuremberg defense, you gave Snowdon his defense.  You are now going to have to litigate in open court.

I’d argue that the 4th Amendment in its original language, unadorned, gives Americans all we need to protect ourselves from both the Orwellian state and from domestic terrorists.  We should support the public, open litigation of the very notion that there can be secret surveillance of an American citizen apart from the probable cause and delineated subject matter that the Founders wrote into the simple language of the bill of rights.

If the NSA is doing what Snowdon describes, then it is a rogue, illegal State, and Snowdon is not a traitor.


The surveillant state defends its legality by noting that judges authorize the snooping, apparently under the auspices of the Patriot Act, and Congress is briefed.   This is supposed to satisfy the 4th Amendment.  But the simple existence of multiple branches of government in a process does not by itself rise to constitutionality, if the entire process is shut away behind iron doors the imperiled citizen cannot penetrate.

What makes the protection of the 4th Amendment real, as opposed to just words, is that the citizen can challenge the probable cause of the search and the scope and process of the evidence collection that is the weapon against him in court. If you, as an individual before the justice system, cannot reach all the way back to the moment when there was no evidence against you and litigate the police and prosecutor’s steps along the way to where you stand today in the dock, you r rights are a sham.

But these judges are anonymous and unelected, and the briefings are classified, and limited to small circles of Congressional leadership.  So if you are ever prosecuted using evidence collected by the kind of generalized data collection Snowdon describes, how will you challenge the origin of the prosecution?   How will you claim the evidence is “fruit of a poisonous tree” if the tree is locked away in a cloistered, invisible garden?   The secrecy of the process makes the powers of the State unaccountable to the people, and therefore illegitimate.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s