Is Snowden above the law he says others violate?

I think yesterday’s New York Times editorial declaring Edward Snowden a whistle blower is wrong.  The Times argues that

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

Let’s grant that all these allegations are true.  Do they justify what Snowden did?

The answer is “no.”  Snowden says he complained first within his own organization about excessive NSA surveillance, but he has produced no evidence that this was the case.  It is a bit hard to believe that Snowden doesn’t hold on to his own emails.  Where are the documents demonstrating that he attempted to raise the issue of excessive surveillance with his superiors?

Were there other options available?  Yes.  He might have talked with colleagues and tried to organize an examination of the issues within his organization.  He could have resigned from his position and published a scathing op/ed in the New York Times.   He might have joined one of the many nongovernmental organizations concerned with excessive government surveillance and helped them uncover the full extent of NSA’s operations without revealing his own knowledge of classified operations.  He could have worked with members of Congress to encourage NSA oversight hearings.

Would any of this have been effective?  I don’t really know.  But it would all have been legal and proper.

Instead, Snowden chose to do three things that disqualify him from my sympathies:

1. He swiped large quantities of NSA data to which he was not entitled.
2. He fled the United States.
3. He accepted temporary asylum in Russia, a country whose surveillance mechanisms are guaranteed to be at least as vigorous, though not possibly as effective, as those in the US.

These are only the things we know he did.  There are still a lot of question marks about what he might have done to get Russian President Putin to reverse his initial decision on asylum, under whose tutelage and protection he operates in Moscow, and what promises he may have made to other foreign governments.   Those who argue on Snowden’s behalf may well find themselves seriously embarrassed in the future.

But let’s leave that aside.  The Times argues for President Obama to end the “vilification” of Snowden and give him an incentive to return home. I’d have thought living in Putin’s Russia would have been more than enough incentive to return home. What kind of civil libertarian accepts the protection of a country that jails its opposition, cracks down brutally on demonstrators, and closes news outlets that dare some degree of independence?  What limits does Snowden think Russia puts on its equivalent of the NSA?  What protests has he launched against Russian eavesdropping?

I haven’t heard the President vilifying Snowden.  Imagine what George W. Bush or Ronald Reagan would be saying if they were in office.  Michael Hayden has suggested Snowden might be a traitor, but Hayden is a private citizen associated with the President’s opposition, not the administration.  What President Obama has said is that Snowden can make his case in court.

That’s what he ought to do.  It is hypocritical of the Times to cite court decisions in Snowden’s favor and then suggest that he need not face prosecution on criminal charges directly and clearly related to what he is known to have done.  Snowden’s many defenders are aggressively pursuing cases in court against the government and NSA.  Why is it that the courts are good enough for them but not good enough for Snowden?  What is it that puts Snowden above the law he so frequently claims others violate?