The public disclosure of classified documents by Edward Snowden has been a polarizing issue, particularly among my friends and colleagues in the infosec world, who pay close attention to matters involving civil liberties, national security, and the Internet. The thing that I have found most disappointing about this whole affair is the need that people have to rationalize their feelings about it by ignoring its reality. I've seen a number of very smart people, for whom I have tremendous professional respect, twist the facts of this situation inside out in order to create simple, morally clear narratives that are utterly wrong.

It is this aspect of human nature that makes political discussions so difficult. We approach challenging controversies with the desire to affirm our own sense of identity and our self interests. Often, the best way to accomplish that, is a selective reading of the facts.

Partisan pundits are professionals who specialize in weaving these narratives for us. They take a set of facts, emphasize and exaggerate some of them, and ignore or minimize others, in order to reach a conclusion that is emotionally satisfying. Having established that the facts clearly lead to a particular conclusion, they then proceed to attack anyone who reaches a different conclusion for not having their "facts straight."

Part of the problem is that we just aren't very good at putting ourselves into other people's shoes, particularly other people that we are angry with.

Its easy to discard facts that don't have any personal relevance for you. In order to understand the relevance to someone else, you've got to go to a lot of effort to understand their circumstances and their point of view. Then you've got to incorporate their legitimate interests into the narrative, leading to a conclusion that is less clearly about you.

It is much easier to just disregard the other side or ridicule them than to respect them and take their interests seriously in this way and risk having to make compromises with them. We want to feel a certain way about a given situation and we're just not interested in points of view that make us uncomfortable. So we construct echo chambers where other people who are just like us tell us how insightful they find our narrow views. People seem to do this regardless of how smart they are, how informed they are, or what part of the political spectrum they are on.

Many of the facts that we ignore and dismiss through this process have more relevance for us upon careful examination than they did at first glance, but we rarely get far enough to figure that out.

Four Americas

In light of these observations, the way that people have reacted to Edward Snowden is not surprising. They have aligned themselves into narrow corners that reflect their own identities and prejudices. However, it IS interesting that instead of the left/right split that usually occurs in American politics, these events have shed light on a different fissure which is rarely illuminated this clearly - the fissure between pro and anti-establishment Americans.

Nate Silver is probably one of the smartest observers of American politics today. One may not always like his conclusions but ignoring his data is an exercise in the sort of irrational partisanship that I lament above. Shortly after this controversy began, he published an interesting analysis on his blog regarding this fissure. The analysis included a 2 dimensional chart of members of the U.S. House of Representatives that clearly illustrates the political impact of this fissure on civil liberties issues, in this case a vote on extending certain provisions of the PATRIOT act.

Of course, we've had a political dialog about NSA Surveillance before - not long ago, and that dialog was a simple left/right dispute. What makes this situation different? The fact that a Democrat is in the Whitehouse.

The Establishment Left

Of the four corners of the political spectrum, the reaction of the establishment left is the most counterintuitive.

When the Bush warrantless wiretapping controversy broke out in 05, there was a huge political firestorm. Why aren't these same people just as mad at Obama?

Many are simply satisfied that the politician behind the spying is one on their side, and they are not afraid to admit it. See this and this. In a very real sense, these people trust Big Brother Obama not to abuse his powers because they think he shares their values. Of course, most aren't naive enough to express their feelings in those terms, so we get a more complex rationalization:

That Bush's programs were illegal, but Obama's programs are legal. In fact, everyone knows that this is going on, everyone knew that it was legal, and no one cares.

This is a very comforting notion, if you can keep it.

However, the telecom and Internet meta-data retention programs revealed by Edward Snowden are far more invasive and far more legally problematic than anything that was publicly revealed during the Bush Administration.

The public controversy in '05 was about warrantless wiretapping of international calls between the USA and specific foreigners directly connected with terrorism. It is obvious that everyone wants the government to do this and it is obvious that warrants could be issued to do it, but the government wasn't bothering to apply for them. The administration was arguing that the warrant process wasn't agile enough. This really boils down to a point of process, and the law was amended to address it.

The new revelations include programs in which metadata about both domestic and international telecommunications of every single person in the United States is being collected all the time. This is a far more intrusive program and the legal and constitutional issues are far more challenging.

This isn't merely a matter of ensuring that the government is following the proper procedure, it is not clear that we want this going on at all. Even if a majority of Americans do conclude that they want the NSA to do this, it may be impossible to legitimize without amending the Constitution.

Of course people have been making allegations about this for years, but the official government line has been that this is not going on, and any legal question about it was shut down using the state secrets privilege. Therefore, there has never been an opportunity before to have a political discussion about whether or not this ought to be occurring or under what legal framework.

Furthermore, there are a number of private sector professionals in our country who analyze national security policy full time and none of these people were under the impression that programs like these had been lawfully authorized. That should put to rest the assertion that everybody knew that this was legal.

Consider Jim Sensenbrenner, the author of the PATRIOT act provision under which domestic call records information is being collected, who wrote:

The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.

Consider law professor Orin Kerr, an expert of the intersection of the Fourth Amendment and information technology, who wrote:

Certainly it's surprising - and troubling - if the Section 1861 relevance standard is being interpreted at the database-by-database level.

Consider Brookings Institution fellows Robert Chesney and Benjamin Wittes, both lawyers who analyze national security policy, who wrote:

It is simply different and grander in scope and scale from anything we had thought the law meant.

Consider law professors Jennifer Granick and Christopher Sprigman, who wrote:

[The] programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance.

It is not rational to hold the view that everything is cool here and there is no problem, if you were upset about what the Bush Administration was alleged to be doing a few years ago.

However, the Democratic party has no interest in a political controversy over this issue, so this time, they aren't going be fanning the flames. The establishment Democrats have a lot of influence over public opinion, and they are going to use that influence to promote the idea that there is nothing to be concerned about here, and many people under their sway are going to believe it, even though it clearly isn't true.

The Establishment Right

Of course, if you supported warrantless wiretapping by the Bush Administration, there is no inherent contradiction in supporting universal data retention by the Obama Administration. The Establishment Right in the United States is generally deferent to military power over other priorities.

In the military, secrets are everywhere. Secrets and the processes that protect them and the clearances needed to learn them are the very fabric out of which the culture of the modern military and intelligence community is constructed. The military needs people to take the secrecy of that information very seriously. The worst thing that you can be in that culture is someone who fails to uphold that responsibility.

It stands to reason, therefore, that people associated with the culture of the military hate leakers like Snowden. Snowden was entrusted with sensitive information and he violated that trust. Its like failing to hold the line on a battle field because of moral ambiguities regarding your country's policies. You're expected to be ready to walk into a wall of lead and die if that is your duty. Wrestling with ambiguities is a matter for people who are not soldiers. You have to trust the rest of us to figure those things out.

The hit pieces started coming out almost immediately. Conservative commentator Richard Cohen delivered the signature moment:

Greenwald said that 'Snowden will go down in history as one of America's most consequential whistleblowers.' I think he'll go down as a cross-dressing Little Red Riding Hood.

Wait - what?

Many of the people that I know who come from a government background believe that Snowden either works for a Foreign Intelligence Service or is being controlled by one, and with each new revelation they've tried to push that football into the end zone.

See - he went to Hong Kong, clearly he must be a Chinese spy! See - he revealed embarrassing information about international spying, his true purpose must be to harm US interests! See - he admits that he signed up for that job at Booz Allen in order to steal information, and that proves that he doesn't care about American civil liberties! See - he went to Russia - clearly the Russians have been behind this the whole time!

Is it possible that Snowden is a foreign spy? Yes. Its possible. Its also possible that Snowden is under the control of a foreign intelligence service and doesn't even know it. There are lots of possibilities. However, none of the revelations that have occurred so far are conclusive in this regard. I think that many of the people in this camp are committing the logical fallacy of ascribing to malice what can easily be explained in other ways. Its possible that Snowden is exactly who he says he is, and he is sitting in an airport in Russia because he ran out of options. (and no, FWIW, I don't think coming here to face our totally reasonable justice system is a realistic option for him.)

I do think that Snowden has disclosed things that harm our operational security interests. For example, the PRISM slide deck shows which Internet services are cooperating closely with the NSA. If you want to avoid being monitored by the NSA, you'd be well served to avoid using those services. The disclosures of specific targets of spying in China are harmful if China was not already aware of that information. We have no way of knowing.

Its reasonable to be angry with Snowden for this. He has commited a crime and that crime has done some harm.

However, its also clear that the information about the telecom and Internet data retention programs needed to be leaked to the press.

The NSA has been running a massive domestic surveillance program that is most likely both illegal and unconstitutional. A number of whistleblowers have been trying to raise awareness about this through legal means. In return they have been dismissed as conspiracy theorists and harassed by federal prosecutors. All the while, government officials have continued to lie to the American people about this at the same time that they used the state secrets privilege to avoid answering for it in court.

The fact is that the "legitimate channels" had every opportunity to get this right and they got it wrong. There simply was no other way that this was going to get resolved.

The only way to dismiss that reality is to conclude that you don't care about seeing this get resolved. You don't care about due process of law or the Fourth Amendment. Of course, these views exist.

For a taste, consider the perspective of th3j35t3r. th3j35t3r is a vigilante computer hacker who launches attacks on websites run by people he doesn't like - often people involved with international terrorism, members of Anonymous, and nation states that do things he disapproves of.

People engage in vigilantism because they are frustrated with the inefficiency of legitimate law enforcement processes or because they don't agree with the things that the law allows people to do. th3j35t3r writes:

But PRiSM is watching my every move?

Get a life. Shit, the average iPhone or Nikon SLR captures more identifying data and meta-data about you than PRiSM, are you getting all crotchety with Apple or Nikon too?

th3j35t3r repeats a common rationalization for government surveillance. The idea is that if you were willing to disclose some of your personal information as you use certain online services, you're revealing lots of information about yourself anyway, so why should you care if the government also collects information about you.

Certainly, the amount of information that is collected and stored by online services is a challenging problem. There is a complicated interplay of consent, contracts, and privacy law at work here as societies seek a framework that protects people's individual interests. The power that individual people have to choose whether or not to post certain information online, or whether or not to agree to use a particular service, is an important part of that framework. People make those choices in light of how long data is retained, who has access to it, and what it is used for. In many ways, this dialog is one of the most important political issues that has been brought about by the advance of computing technology.

By retaining data without the people's consent, the NSA has short circuited this entire discussion. They have made the decision for you. They have made the decision for everyone. And that is very much what the problem is here. They literally had no right to do that.

th3j35t3r continues:

I am aware of 40 foiled plots in just one year - just like the Boston Bombing - you can thank our intelligence community with the help of programmes like PRiSM you don't know about 39 more. For the record, I don't sway towards a pro-government stance, no matter what you may think, I sway toward pro OUR Military, LEA, & Intel Communities who do the same job no matter who is sitting in the big seat.

Marc Thiessen is a former Bush Administration speech writer who also isn't concerned about the privacy impact of the call records programs:

If the critics don't think the NSA should be collecting this information, perhaps they would like to explain just how they would have us stop new terrorist attacks.

Thiessen also manages to get a jab in about the fact that we're no longer torturing people:

There are only three ways we can get information to prevent terrorist attacks:

The first is interrogation - getting the terrorists to tell us their plans. But thanks to Barack Obama, we don't do that anymore.

Thiessen also isn't concerned about the fact that DNI James Clapper lied to the Senate. In Thiessen's America, the people are beholden to the interests of the Intelligence community, and not the other way around.

What is outrageous is not that Clapper tried to protect classified information in an open session, but that Senator Ron Wyden asked him the question in open session the first place.

Former NSA Director Michael Hayden recently made some comments about the trade off between efficiency and oversight:

I'm willing to shave points off of my operational effectiveness in order to make the American people a bit more comfortable about what it is what we're doing.

Its important to understand that some people are not willing to shave those points. They would not subject our military to public oversight. They don't hold this view because they are evil - they hold this view because they want the military do be able to do everything that it can to protect us from evil. This is an extremely persuasive view to people who work within the military, because they believe in the righteousness of the other people they are working with and the missions they are on. They can't see their own capacity to do harm, and so they don't understand why their exercise of power is so constrained.

If these people are allowed to permanently escape democratic oversight, the situation will become extremely dangerous over time. In the long run, the difference between a benevolent military dictatorship and a free country built out of laws is the whole point of the United States of America.

The Anti-Establishment Left

The anti-establishment left certainly understands the capacity that the military has to do harm. At its extreme, the anti-establishment left is pacifist, and Snowden's actions have solidified within this community the view that radical transparency is a way to fight war and oppression. They believe that Ellsberg, Manning, and now Snowden form a continuity of leakers who have brought forth peace and democracy throughout the world by shining light into American military establishment.

It helps this world view if you hold Manning personally responsible for the Arab Spring and you dismiss the idea that there were negative consequences associated with his information disclosure. I'm not sure that view is historically accurate. The Middle East could be characterized as a pile of dry kindling, to which Manning added a few twigs. There were a lot of other people and other factors in play. As I write this, hundreds of thousands of people are out in the street in Egypt to protest Morsi and that obviously wasn't triggered by anything that Wikileaks disclosed. On the other hand, people on the left dismiss the negative consequences of the leaks because it is intellectually convenient and not because it is true.

I think that Josh Marshall did a very good job of slicing through this world view.

It's hard to see any justification for what Manning did, which is basically downloading everything he could find and giving it to a foreign national (Assange) with the expectation that he'd just dump it into the public. There were a couple clear cases of wrongdoing revealed in his documents. But the vast majority were fairly mundane diplomatic cables, military records and so forth...

If you see the state as essentially malevolent or a bad actor then really anything you can do to put a stick in its spokes is a good thing. Same if you think the conduct of US foreign policy is fundamentally a bad thing. Then opening up its books for the world to see is a good thing simply because it exposes it or damages it. It forces change on any number of levels.

From that perspective, there's no really no balancing to be done. All disclosure is good. Either from the perspective of transparency in principle or upending something you believe must be radically changed.

On the other hand, if you basically identify with the country and the state, then indiscriminate leaks like this are purely destructive. They're attacks on something you fundamentally believe in, identify with, think is working on your behalf.

Now, in practice, there are a million shades of grey. You can support your government but see its various shortcomings and even evil things it does. And as I said at the outset, this is where leaks play a critical, though ambiguous role, as a safety valve. But it comes down to this essential thing: is the aim and/or effect of the leak to correct an abuse or simply to blow the whole thing up?

In Manning's case, it's always seemed pretty clear to me that the latter was the case.

But what about Snowden's case? This is where Josh Marshall losses me. His reasoning seems to be that Snowden subscribes to the radical transparency views that he disagrees with, and therefore what Snowden has done here is wrong, even if it was also useful for democracy.

Marshall, like everyone else, seems to need a black and white view of this situation. Snowden is either good or evil. He is either right or wrong. He cannot be both.

But he is.

What we have here is a situation where the American military establishment has engaged in an action that is illegal. Many people within the government where aware of this, but nobody wanted to do anything about it. This got resolved because an individual person took it upon himself to resolve it. Its not clear that it could have gotten resolved any other way.

The way that Snowden chose to resolve it was flawed, but why should we expect anything different? We should expect perfection from institutions and not from individual people. When formal institutions fail, over a long period of time, to address an issue of this significance, and there is no alternative but for individual people to take illegal actions in order to address the situation, the consequences are going to be messy. If you think this should have been resolved in a different way, the people you should be angry with are George Bush and Barack Obama. They are directly, personally responsible for this mess.

I think Snowden has gone way too far in terms of the amount of information that has been disclosed. Some of the programs, like PRISM, are to be expected given current public policy. Some of the programs are merely spies doing what spies are understood to do - targeting foreign diplomats and the like. Why did all of that information need to be disclosed? It may be the case that Snowden does believe in radical transparency. If so, in this case, radical transparency has done harm to our national security.

I think that radical transparency is a bad idea worth refuting. We don't know how to operate a military or a diplomatic service that cannot keep secrets. We must do these things in order to operate our government. Young people who are inspired by this to engage in wanton leaking of secrets are going to do a lot more harm than good.

But, on the balance, the information that Snowden has disclosed has done far more to reveal wrongdoing by our government, and that appears, on the surface, to have been Snowden's intent, unless some piece of additional information emerges that irrefutably changes our understanding of who he is and what his motivations are.

The Anti-Establishment Right

I've tried for a long time to embrace Libertarianism, but I cannot. As a political movement, its ranks are swollen with people who are indifferent to civil liberties and want nothing more than to pay lower taxes. The answer they have for every problem seems to be fewer government programs. In the real world, economic systems produce negative externalities and market failures, and consumers often operate with imperfect information. These are problems that are appropriate to resolve through the mechanism of the state.

In many respects then, it is easy to accuse the Libertarians of wanting to put a stick in the spokes of the state just like their liberal counterparts. However, the difference is that unlike the anti-establishment left, the Libertarians have a professional policy think tank called the Cato Institute, and a lot of very good policy analysis work comes out of there.

I have been particularly appreciative of the writings and news media interviews on this topic by Cato research fellow Julian Sanchez (@normative). I think he has injected a reasonable perspective into this discussion. For example, in this podcast he said "If Congress cannot know facts at this level of generality than this idea that the law is endorsed by the people is something of a sham."

I could not agree more.

So, what do I think?

The question of electronic surveillance is one of the most important civil liberties issues of the modern age, and when it comes to this subject, our government has now lost all credibility.

We're left with absolutely no basis upon which to trust future assertions. They said they weren't operating a program like this, but it turns out that they are. They say they are operating it under a bunch of civil liberties safeguards. Is that true? Why should we believe it? What other programs are they operating that we don't know about? How many other conspiracy theories are actually true?

Without reestablishing some basis for trust its impossible to have the follow on conversation about whether or not we ought to have this surveillance program or, if we must, under what legal framework.

For this reason I am disappointed that the organized political movement that has popped up in response to this situation is called stopwatching.us. If they tell us that they have stopped watching us, there is absolutely no reason for us to believe it.

Furthermore, even people who are sympathetic to the possibility that we ought to have a metadata records retention program like this may still be offended that it wasn't publicly disclosed and lawfully authorized. Those people may not be willing to join a political movement demanding that the surveillance program be shut down, even though they might have joined a different political movement demanding greater government transparency and accountability. Basically, I think that by calling on the government to stop watching us we may be solving the wrong problem in a way that leaves potential supporters on the sidelines.

Unfortunately, the people who operate our government may not give a damn either way.

Columnist Thomas Frank provided an accurate description of the situation in an essay titled "Freedom: The Big American Lie."

Back in 2005, when the New York Times reported that the NSA was engaged in probably-illegal wiretapping, it ignited a nationwide firestorm...

“Warrantless wiretaps” were one of a string of outrages… that Senator Barack Obama used to denounce in his campaign speech as a sort of incantation when he was running for the presidency in 2008. And that’s why, for a certain sort of idealistic liberal, this man Obama was the most desirable presidential candidate imaginable, and why so many greeted his election as something like a deliverance from evil.

And today it is Obama himself who countenances something very similar to “warrantless wiretaps.” Obama has... flown in the face of what he seemed to stand for - of what he promised in fact: open government, a respect for privacy and for the rule of law.

Those who wonder why a politician would do such a thing must remember how statesmanship is practiced, American-style. To snub and even to wound your most zealous supporters, as Obama has done, is regarded as a mark of maturity in Washington. This is not because snubbing or wounding them is a brave thing to do, but exactly the opposite: Because the righteous attitude of the idealist is repugnant to the men of power, who know that idealists are, in fact, men of weakness, entitled to neither courtesy nor respect.

What makes them weak is the structure of the American political system. When the public's choices are limited to one of two parties, idealists have, as the Washington saying puts it, 'nowhere else to go.' Since they aren't about to defect to the other party, their claims on a Democrat's attention are negligible. Their role is to shut up and cheer.

I hope that this time, the Democrats have pushed things too far. Consider the booing of Nancy Pelosi at Net Roots Nation. The people in that audience yelling things like "You Suck" were, a month ago, among her most influential allies in the American political scene.

I hope there are people on the left and the right who do actually care about government accountability and transparency, and aren't willing to buy into what the establishment talking points are.

Although stopwatching.us isn't the political movement that I would have created, it is the political movement that we have, and I think that anyone who is concerned about democratic legitimacy of our government needs to stand with them, because we aren't going to get it any other way.

I attended the Restore the Fourth rally in Washington D.C. of the Fourth of July, and there I found something that you rarely see in America today - people of vastly different political stripes bound together under a common cause. Tea Party conservatives with their "Don't Tread on Me" flags standing side-by-side with liberal Occupy Wall Street activists who flew American flags upside down. There were computer hackers and preppy fraternity and sorority kids and hippies and members of the military and civil rights activists and skateboarders. I don't think anyone knows what the consequences of an alliance between these groups of people will be.

The Declaration of Independence says "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

We didn't consent to this. Regardless of what anybody says about this whole affair, there is no denying that fact. And that is the bottom line.