Op-eds

Is Snowden Obliged to Accept Punishment? Professor Glennon Weighs In

Just Security

Prof. Michael Glennon

This is Secretary of State John Kerry’s answer, given May 28 on CBS This Morning:

“He should man up, come back to the United States. If he has a complaint about what’s wrong with American surveillance, come back here and stand in our system of justice and make his case. But instead, he’s just sitting there taking pot shots at his country, violating his oath that he took when he took on the job he took, and betraying, I think, the fundamental agreement that he entered into when he became an employee.”

Lest anyone miss the point, Kerry explained that same day on MSNBC that Snowden is a “coward” and a “traitor.”

Elements of the same argument, absent the macho bluster, have been advanced by a number of serious commentators, Michael Kinsley and Benjamin Wittes among them. It is a serious argument. Let us, therefore, consider it seriously.

Pulling together disparate strands and stating the argument in its strongest form, it might be formulated as follows. Snowden effectively seeks to place himself in the tradition of civil disobedience. That tradition has it that an unjust law may, and perhaps must, be disobeyed. Snowden necessarily contends that the laws protecting the secrecy of the NSA programs that he revealed were unjust. The people, he believes, had a right to know about them. But the tradition of civil disobedience requires that the disobedient accept the penalty that the law prescribes. This is necessary to ensure sincerity and to reaffirm one’s respect for and commitment to the rule of law generally, from which Snowden has surely benefited and the validity of which he does not contest. Acceptance of punishment is part of an implicit social contract, and is particularly obligatory where the challenged activities were legal, as were the NSA programs at issue; where the disobedient agreed not to disclose them, as Snowden did; and where public disclosure could cost lives, as his could. If every national security official felt free to leak any classified information about any program deemed for some reason objectionable, chaos would ensue. Snowden ought therefore to return to the United States to stand trial and face whatever penalty the law imposes.

The argument has a specious attractiveness; however, its premises are arbitrary, its logic shaky, and its implications pernicious.

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