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A Case of Conviction: Many Troubling Aspects of the Manning Verdict and Snowden Saga

08/01/2013 05:12 pm ET | Updated Oct 01, 2013
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Bradley Manning stands convicted, though not of the biggest charge. Edward Snowden is out of Moscow's main airport, his latest revelation of NSA surveillance echoing loudly around the world and in the White House. Two cases of conviction, though imperfect, with only one convicted, bringing mixed tidings and mixed reactions.

There are a variety of troubling aspects here, pro and con with regard to Manning and Snowden. But on balance, it shouldn't surprise observers that, in the long run of the post-9/11 era, the nod will go in their direction.

I'm sensing a largely fractured reaction to the Manning verdict. I have a fractured reaction all my own. I thought revealing what looked very much like a possible war crime was useful. Along with some of the revelations of stupidity in policy planning and command in Iraq and Afghanistan.

(Here's a useful compendium of Manning's leaks via WikiLeaks. I notice that it leaves out a number of things, especially embarrassing commentary from various diplomatic missions.)

I also thought what Manning did was wildly indiscriminate and much of the time the intellectual equivalent of throwing fists full of gravel at a plate glass window; destructiveness in the form of embarrassment for the sake of destructiveness.

But he's no traitor, as any reading of the Constitution, whose authors deliberately set a very high bar, makes clear. And he's not really a spy, either.

The "aiding the enemy" charge was a very dangerous charge to bring, as it would have an enormously chilling effect on investigative journalism. Especially since it's not entirely clear how the enemy was aided. In fact, the most recent report we are publicly aware of indicates that intelligence practices and sources weren't compromised. And no one seems to have been killed as a result of the relatively indiscriminate leakage.

When embarrassing the government -- which in large part is another way to say, embarrassing a set of politicians -- is equated to "aiding the enemy" then we have gone very far down a very dangerous path. Dissent, which is at the heart of any democratic system, cannot be equated with treason or even treacherous disloyalty.

That said, using the media as vehicle to get out word that actually does aid the enemy -- as in provide clearly operational intelligence, not political embarrassment -- is certainly a conceivable scenario. So we can't have anything goes, either. Total transparency is tantamount to unilateral disarmament in an information age.

It's also obvious that we can't have privates, or any subordinates, thinking they can simply pick and choose which orders to follow. Even if the orders are sometimes wrong or stupid. Not in any real military. The individual may be correct, but he may also be incorrect. Failing to follow orders because one's heart was in the right place is a ludicrous notion. So Manning, as a member of the military, had to be convicted on at least some charges.

On the other hand, we don't want people just to be "good Germans," as the post-Nuremberg saying goes, either.

Manning is going to prison, probably for quite a while.

Those who insist on the notion that he deserves a life sentence will likely be disappointed, because the public is deeply distrustful of the folks who are making what are turning out, once again this week, to be even more expansively intrusive decisions about surveillance of not just terrorism suspects but an entire society.

For Edward Snowden has succeeded in changing the game, and is likely to have far more impact because I suspect there is still more to come.

His revelations, about systemic spying on us all, differ from Manning's, which provide a scatter-shot guide to making a lot of trouble for the U.S., along with revealing some serious problems.

The Guardian has its latest Snowden-derived revelation of NSA surveillance per the enterprising advocacy journalist Glenn Greenwald. The latest secret NSA surveillance program to be revealed allows an analyst to search a user's e-mails, chats, and browser history with only basic Internet identification data.

It's quite alarming.

But it is of a piece with what we have already learned in a wild two months beginning not long before the U.S.-China summit in California.

Though establishment politicians and media did their level best to shut down debate, while amusingly insisting they wanted debate on something that had been kept deliberately secret, it's really no wonder that momentum has been building against the emerging ubiquity and intrusiveness of these cyber-surveillance programs.

The dramatically changed politics were clear last week in the House, where a plan to in effect eliminate the NSA's phone program was barely defeated.

Now Wisconsin Congressman James Sensenbrenner, congressional sponsor of the Patriot Act whose interpretation has given rise to the controversy and staunch Republican, is working with California Democratic Congresswoman Zoe Lofgren and others on ways to dramatically scale back NSA surveillance.

Sensenbrenner, when he spoke on behalf of the NSA program defunding amendment, said he had never intended with the Patriot Act to enable surveillance going beyond specific targets of investigations.

Even the most diehard defenders -- like Senator Dianne Feinstein and Congressman Mike Rogers, the Senate and House Intelligence Committee chairs -- are looking for ways to at least co-opt widespread popular concerns. Rogers promises fall legislation with new privacy components and more openness for the ultra-secret FISA Court, which denies government requests once in a blue moon, classifies its orders, and does not allow representation for any side but the government's.

Here is my concern about this extraordinary level of surveillance. If people are able to easily see who I am calling and what I am doing on the Internet, they have an extraordinary window into my mind. I don't like that. Not one bit. And not because I have a liking for child pornography or jihadist bomb making tutorials. Simply because that is properly a level of extreme intimacy that can only be earned. And ultimately only granted by one person: Me.

No government, even a government I support, as is the case with this government, should have that ability.

I am also, let's say, extraordinarily skeptical about the argument that the capability to do something won't lead to it being done. That's not human nature. Power tempts, power seduces, power corrupts, to paraphrase and update Lord Acton's oft-proved dictum.

And that's my concern about normal people. Imagine a J. Edgar Hoover type with this sort of power at his fingertips and those of his minions.

As the Lucius Fox character noted in The Dark Knight, which explored this very sort of scenario five years ago: "This is too much power for one person." Even a person of good intentions. And it is far too much power for the unknown number of persons who evidently have it now.

Oh, and for those who say these guys should have pursued a classic whistle-blower route, this Washington Post story makes clear that the fate of the whistleblower, these days, is anything but promising.

All this provides a bonanza for Vladimir Putin, into whose crafty clutches the brilliant strategists running the get-Snowden program have managed to deliver the runaway leaker. Yes, it's highly ironic that Snowden has found a temporary sanctuary in an authoritarian country. But it's also foolhardy to have blocked him getting to his planned asylum in Latin America.

If there are secret cyber-architectures in Snowden's hands, in the form of those ballyhooed four laptops he is carrying, this allows the spymaster-turned-president all the time in the world to get at them. And even if such secrets are now only in virtual form, the same situation exists.

And if there are not such secrets to be had, there is massive propaganda value to be had. Russia is a resurgent great power as it is, thanks to it vast stores of fossil fuels and clever geopolitical moves. This makes Putin look more benign.

Perhaps more to the point, it makes the U.S. look more malign. Getting NATO allies to force down the Bolivian president's plane on the rumor that Snowden was aboard was a classic cowboy move all too in keeping with Snowden's revelations of a secret program of massive near-global surveillance of not only governments, but individuals.

It should be obvious that the U.S. needs to occupy the moral high ground as it pursues expansive geopolitical strategies. To the extent that it does not, those strategies are at risk of provoking a massive anti-U.S. coalition.

Certainly not the sort of result the Obama Administration is looking for.

You can check things during the day on my site, New West Notes ... www.newwestnotes.com.