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Hero or Villain?

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EDWARD SNOWDEN VENEZUELA RUSSIA
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So is Edward Snowden a hero or a creepy betrayer? The fact that he is huddled in a Moscow airport waiting for some country to take him in lends credence to the betrayer view.

Since September 11, 2001, a lot of queasy liberals have cut the U.S. government a fair amount of slack when it comes to surveillance of potential terrorist plots. The attacks happened, after all. And more plots followed. Al-Qaeda is no paranoid fantasy. We can't have people with top-secret information making national policy, as free-lances.

But as one detail after another has emerged in the wake of Snowden's initial disclosures, the weight of evidence keeps shifting to the hero side of the scale.

Put aside for the moment Snowden's motives, or character defects, or awkward international flight from Hong Kong to Russia.

History is likely to record him as something of a hero for the long overdue national debate that he has forced. Since Snowden, a largely intimidated press has begun doing its job, and the revelations are not pretty.

We've learned that the plain old Post Office opens the mail of lots of non-violent Americans associated with radical protests, without the niceties of search warrants.

We've learned more details about a long history of cooperation between the telecom industry and spy agencies.

We've learned that the U.S. bugs its closest allies. And that those allies, like France, have similar electronic dragnet programs themselves!

We've learned that NSA officials have repeatedly lied to Congress.

And we've also learned that the people who set up the internal security system for the NSA itself were dopes. They allowed a hacker the keys to the kingdom, without even the sort of checks that would reveal whether he was using the information at his command legitimately. Suppose his motive had been blackmail? Suppose he were in deep cover for al-Qaeda?

Just when you think you've heard it all, more details pour out. The fact that America's European allies were willing to bow to Washington's demand to deny a refueling stop to Bolivian President Evo Morales' plane because of the suspicion that Snowden might be aboard tells you something about who rules the world when push comes to shove.

Europeans, outraged at the revelations of U.S. spying on the EU's Washington mission, threatened to scuttle pending negotiations for a trans-Atlantic Free Trade area (TAFTA). But that dispute was quickly papered over with a deal to pursue the spying issue on one track and the trade deal on the other.

The proposed trade agreement is not really about cutting tariffs, which are already low. It's about using "free trade" to get rid of pesky economic, social, labor, and environmental regulations such as those regarding genetically modified food, that annoy multinational corporations. American and European corporations have had access to negotiating documents (and helped write them), but not the public. The fact that even revelations about the US spying on the EU could not derail that scheme also tells you a lot about who rules (corporations.) But I digress.

For me, the stunner so far is the revelation in Sunday's New York Times that the 11-member Foreign Intelligence Surveillance (FISA) Court has become a kind of "parallel Supreme Court," presiding over a secret system of justice, immune from any kind of adversary process or legislative oversight or Fourth Amendment protections.

The FISA court, the Times reported, has taken a narrow doctrine of "special needs" and expanded it into a general waiver of search warrant protections, including access to purely domestic email.

Cops tend to over-reach -- all kinds of cops. That's why we need courts. That's why the constitutional Founders insisted on public trials, with an adversary process, complemented by the further protections of the Bill of Rights.

The Founders remembered the abuses of the Star Chamber, and the Inquisition. As the War of 1812 and the burning of the capital by the British in 1814 demonstrated, that was also an era when one might have justified all manner of breaches of liberty in the name of national security. But with some intermittent lapses, mainly in wartime, the Constitution held.

Today, however, despite President Obama's pretty words at Georgetown in May declaring that "this war, like all wars, must end," we are needlessly throwing away liberties on the premise of permanent warfare. The FISA court, despite its own protestations and those of the Obama Administration, has become a pure rubber stamp.

Ironically, the FISA Court was created in 1978 by Congress to rein in the excesses committed in the name of national security that were exposed by the Senate's Church Committee. Sen. Frank Church's investigation was one in a series of events stimulated in part by the revelations of another leaker/hero. Daniel Ellsburg made public the Pentagon Papers, which revealed systematic lying to Congress about the Vietnam War. It was the Pentagon Papers leak that intensified the Nixon Administration's domestic spying.

As Americans, we may ultimately decide that we need to give up some liberties to protect our security in an age of terrorism. Or we may decide to rein in the spying excesses of the post 9/11 era. For instance, Professor Geoffrey Stone has proposed one very modest reform:

Whenever the government seeks a warrant from the FISA court, an independent government lawyer, with a security clearance, should have the responsibility of arguing the other side. In a sense, this would be something like a public defender's office, where the "client" is not only the target of the proposed surveillance (who would know nothing about what is happening), but also the national interest in reaching the best outcome in these matters.

That may be too modest. But, whatever we decide, we need this debate. And in order to have it, we need to know exactly that the NSA, the FISA court, and the rest of the secret state are up to.

Had Edward Snowden not gone public, excesses of the national security state would have gone even further underground. The national security might or might not be harmed if there were much tighter controls on data mining. But it is surely not harmed by this debate.

That's why Snowden, whatever his motives and whatever his fate, needs to be counted, on balance, a hero.

Robert Kuttner's new book is Debtors' Prison: The Politics of Austerity Versus Possibility. He is co-editor of The American Prospect and a senior Fellow at Demos.

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