07/19/2013 03:37 pm ET Updated Sep 18, 2013

Government Response will Grade Snowden's 'Hero Test.'

In the last three weeks, reactions to Edward Snowden's leaks to the American and British press have shifted from shock at the contents of the leak to whether the leaker has the credibility of Daniel Ellsberg. Snowden's supporters, who include Ellsberg himself, point to the similarities between the two men: the risks they took and the love they have for democracy. Snowden's detractors point to Snowden's lack of academic and patriotic credentials. He's not Ellsberg, they say, because he didn't get a PhD from Harvard. Nor did he serve in the Marines. But the main reason he is not Ellsberg, they say, is that he hasn't turned himself in.

When Ellsberg leaked state secrets from the McNamara Report to the press, he went into hiding in his Cambridge home. Two weeks later, he turned himself in. He did what Senator Dianne Feinstein ordered Snowden to do, "come back and face the music." As long as Snowden stays away, she suggested, he fails the hero test. Lindsey Graham demanded that we chase Snowden to "the ends of the earth," as if he were holed up in a cave in Tora Bora and not in one of those stateless places within international airports. The Senator's rhetoric places Snowden closer to an al-Quaeda operative engaged in terrorism than a patriot engaged in civil disobedience.

In 1971, when Ellsberg released the Pentagon Papers, public support for the government was relatively high, particularly by white people who hadn't served in Vietnam. Ellsberg's leak began a painful process of looking at very uncomfortable truths about the war and the Nixon Administration. When Ellsberg turned himself in, he gave the state a second chance to get it right. Even if the executive branch was in shambles, the courts could speak out for justice. Ellsberg case was dismissed when it became clear that the evidence against him was obtained by clumsy and thuggish means. A federal judge condemned government prosecutors for "gross governmental misconduct" and the world could see that America still had institutions strong enough to correct herself.

In 2013, it's harder to make that claim. First, governmental surveillance, as the Snowden leak reveals, no longer operates with the clumsiness of J. Gordon Liddy. Second, after Citizens United, it is harder to argue that the courts operate as a check against gross misconduct, governmental or otherwise. Third, since 9/11, the use of secret FISA courts has denied the public the opportunity to hear a federal judge telling the government to back off. Technical sophistication plus a Supreme Court unwilling to see the effects of big money on politics and the absence of public hearings on government overreach have left many of us feeling like the only place to stop the juggernaut is away from its smooth and silent reach. In other words, even Daniel Ellsberg might not be able to be Daniel Ellsberg any more.

All of this isn't to say that Snowden is to be applauded for the risks he took. We don't have the information to decide. But it's interesting to note that Ellsberg's status as the gold-standard of civil disobedience was not derived by the evidence in his favor but because the government was officially slapped on the hand. That's the work that really needs to be done, regardless of any personality traits of the leaker.