Surveillance: Snowden NSA Controversy

A Very Brief Reply to Glenn Greenwald

By Benjamin Wittes
Sunday, March 23, 2014, 9:16 AM

Over at his new publication, The Intercept, Glenn Greenwald has a piece taking to task those criticizing Edward Snowden for news stories that, in fact, reflect the editorial judgments of the newspapers that published them. I actually agree with Greenwald about this. I have criticized both the New York Times and the Washington Post for their editorial judgments regarding Snowden documents. So I'm not taking issue with his larger point. But I want to respond briefly to a question Greenwald raises along the way:

(4) The jingoistic view of what is “newsworthy” is baseless and warped. Somewhere along the way, this idea arose that the only “legitimate” disclosures involve ones showing violations of the rights of American citizens. Anything else, this reasoning holds, is invalid, and because Snowden leaked documents that go beyond the violation of Americans’ rights, he is not a legitimate whistleblower.

Who created the uber-nationalistic standard that the only valid disclosures are ones involving the rights of Americans? Are we are all supposed to regard non-Americans as irrelevant? Is the NSA’s bulk, suspicionless surveillance of the private communications of hundreds of millions of human beings inherently proper simply because its victims aren’t American citizens?

There's a very simple answer to Greenwald's question: The United States---like all countries that apply law to espionage at all---treats spying domestically and on its own nationals as legally different from spying abroad. The result is that there's greater legal question about the propriety of spying on Americans than there is about spying on foreigners overseas. Indeed, we have an NSA precisely in order to spy on people in other countries. So the mystification at the eagerness of the press to blow sensitive intelligence programs, a mystification I share, is a mystification at the press's eagerness to expose lawful conduct deemed in the national interest by the democratically elected representatives of the people. Greenwald may dissent from their judgment over a great many decades, and that is his right. But the judgment, being reflected in the entire fabric of American intelligence law, makes the decision to report the Huawei story, say, qualitatively different---and a far less obvious case for publication---than, say, the journalistic judgment to expose the metadata program, a sensitive program that involves an aggressive reading of U.S. law with respect to collection that against U.S. persons. Greenwald may regard as jingoistic the distinction the law makes between collection against U.S. persons and collection overseas, but it is the law. And I would challenge him to find a single example of a country that applies the same privacy rules to espionage in foreign adversary countries as it does to its own people---other than countries whose privacy rules are not to have any.