08/22/2013 04:28 pm ET | Updated Oct 22, 2013

Jeffrey Toobin Really, Really, Doesn't Like Edward Snowden

Jeffrey Toobin, the prominent legal affairs commentator and political pundit, has been a bitter critic of Edward Snowden from the very beginning of the NSA disclosures. Ironically, some might say, a number of elite journalists have emerged as among Snowden's harshest detractors and of the brand of investigative journalism practiced, for example, by Glenn Greenwald, who has done much of the reporting on this ongoing story. But this week Toobin appeared to be positioning himself as the leader of that particular pack, both in an attack on Snowden in the New Yorker and on CNN, when he shamefully defended the detention in Britain of Greenwald's partner, David Miranda.

Initially, Toobin pooh-poohed the newsworthiness of the information Greenwald and others were reporting. In his first broadside against Snowden in June, Toobin called the former NSA analyst a "grandiose narcissist," but also insisted that anyone paying attention already knew what Snowden purported to be revealing.

That's become a less and less tenable position over time and one finds many of Snowden's critics in the elite commentariat, including Toobin, now at least nodding to the importance of having an open debate about the proper limits of government surveillance. But his writings and statements this week again suggest that Toobin's mainly interested in using his considerable platform to launch personal attacks, not to help foster a serious debate about the expanding national security apparatus. His new New Yorker piece, in this connection, is a real humdinger, with an opener for the ages:

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.

On one level, Toobin is making a simple argument: the ends don't justify the means. But for reasons that perhaps he himself can best explain, Snowden's disclosures have sent Toobin around the bend. So, writing: "the ends don't justify the means" is wholly inadequate to convey the outrage at Snowden that Toobin so desperately wants us all to experience. Therefore, he's concocted a highly inflammatory form of the old saw. For the analogy to work, Toobin needs us to buy the idea that Snowden's actions are the plausible equivalent of assassinating Martin Luther King, Jr. and RFK. Readers can decide for themselves whether that is an appropriate or proportionate comparison (In case you didn't already think poorly of Snowden, Toobin also claims Snowden described people working at NSA as "nothing better than Nazis." Charles Pierce explains clearly why Toobin's engaged in gross distortion here).

Having established that Snowden's actions are the equivalent of egregious and historic crimes, Toobin tries to detail the "real costs" of those crimes. He lists three:

1) The possibility that Snowden might be wrong about pervasive illegality. Given the backpedaling, denials, outright lies and specious reasoning that have been the administration's calling card on these issues, I wouldn't want to hitch my wagon to that particular horse. But even if the programs are "lawful," the promulgation of secret laws, efforts to conceal the extent of these programs from Congress and trying to block the courts from overseeing them, have all perverted the oversight mechanisms to which a democratically accountable government ought to be subject. And by the way, though Toobin lists this under his "real costs," a possibility of being wrong isn't logically a cost, unless you think the mere debate about that possibility is a cost. Which gets us back to whether Toobin is really committed to a vigorous public discussion about the issues raised by the disclosures.

Toobin acknowledges recent reports that the NSA admitted to 2,700 "errors" in a 12-month period -- instances in which it engaged in "unauthorized data collection." Like others, Toobin considers this no biggy because a) it wasn't intentional (about that bridge I was telling you about...) and b) it's such a teeny tiny percentage of all the queries the NSA is making. If I understand the logic here correctly, Toobin and other defenders of NSA snooping presumably think that a government sweeping up a thousand records a year and making mistakes on ten of them (one percent), is an obviously greater threat to our rights than a government that sweeps up a billion records a year and "only" commits errors in 3,000 cases (far less than one percent). I know I feel better.

2) The dollar costs of the disclosures. I will give Toobin this -- this item actually fits the normal definition of a cost. Toobin says these "will certainly" run into the "billions of dollars." Is this significant, especially in the context of a 16-trillion dollar economy? And does Toobin have any idea of the actual amount involved, or is he just guessing? Even if some expense is involved in overhauling NSA procedures, Amy Davidson, also in the New Yorker, rightly asks: "Couldn't one just as easily say that, by imposing more of a cost on, for example, work habits that include almost three thousand rule-breaking incidents a year, investigative journalism might make the agency operate better?" Unless you believe that the precise operations that the NSA has been running are all for the best in the best of all possible worlds, it hardly seems like a crushing cost to re-tool the program to some degree to ensure greater security, or minimize violations of privacy, or both.

3) A final cost Toobin adumbrates is that the Russians and the Chinese must have gotten access to the documents Snowden was carrying while he passed through those two countries. Toobin doesn't know this, of course. He just assumes it must be so. Snowden says otherwise. I have no idea what the Chinese and Russians now know that they didn't before, though I think we can surmise that they already assumed the worst about our operations. Toobin also asserts that Chinese and Russian political prisoners may find their cell doors "may be locked a little tighter today" because of what Toobin presumes they found on Snowden's hard drive. We are now at the deep end of the pool of inane speculation.

I think it's important to say an additional word about Toobin's disgraceful defense of the detention of Miranda on Monday night. The British held him for nine hours under an anti-terrorism law that mandates that individuals may only be held if they are thought to be connected to the commission, instigation or preparation of terrorist acts. There is no plausible argument that this was true of Miranda, which is why one of the law's original sponsors described Miranda's detention as incontrovertibly in violation of that law. It would have been the easiest thing in the world for Toobin to have maintained his stance about Snowden's criminality while granting that Miranda's detention was obviously petty, vindictive and an affront to basic standards of decency, more befitting an authoritarian state than a democracy. Instead, on CNN, he likened Miranda to a drug mule (Toobin's hitting below the Mendoza line with his analogies this week) and made the ridiculous claim that the British were right to hold him because he was (thought to be) carrying information that might be useful to terrorists (now there's a standard that I'm sure would cause every national security journalist in the world to go looking for other employment).

In any event, absurd historical comparisons and name-calling aside, if this is the most dire accounting Toobin can muster of the costs of Snowden's actions, color me thoroughly underwhelmed. Toobin may not like it, but the revelations for which Snowden is responsible have touched off a discussion the likes of which we simply would not have had otherwise. Toobin may say he wants a serious debate, but wants it to happen through the "proper" channels. But that simply never would have happened (and as Dana Milbank and others have made clear, whistleblowers going through the proper channels haven't exactly been feted as heroes lately). We have to deal with the political system we have -- cloaked increasingly in secrecy as it is -- not the one we wish we had, a point about which mainstream media types normally condescendingly lecture to supposedly naïve "advocates." Many of Snowden's critics continue to flail about looking for signs that he really, really, really, did lasting damage to the United States. But the true damage already done is evident in the reflexive need of some in the elite media to defend the state's prerogatives, while excoriating those (like Greenwald) who do the work that, as Amy Davidson says, journalists are supposed to do -- "challenge the government's practices." For the Toobins of the world, at least to judge by their conduct throughout the whole NSA surveillance story, it appears that we are only entitled to transparency and accountability if the government says we are. These same folks have revealingly saved their ire and vituperation for those who think otherwise, while regarding the potentially systematic wrongdoing by that same government as worthy of little more than an obligatory afterthought.