Edward Snowden, a 29-year old high school dropout and employee of a contractor working for the National Security Agency, has claimed credit for releasing secret and classified documents, including a court order authorizing the collection of telephone records, and the revelation of a program called Prism to collect internet data on foreigners from service providers like Facebook and Google. He has fled to Hong Kong, now a semi-autonomous part of China, from which he has granted interviews.
No government action disclosed by Snowden’s leaks appears to be illegal. Government efforts to prevent terrorism after the 9/11 terrorist attacks by monitoring “chatter” were widely but only generally known. Snowden’s disclosure reveals the details of the U.S. government’s efforts, wasting enormous amounts of taxpayer dollars and human effort in trying to create a system for gathering information. By allowing terrorists to know such details, the disclosure will enable them to make informed efforts at avoiding such surveillance.
The fact of a federal court order authorizing surveillance practices is evidence of government efforts to comply with the requirements of the Foreign Intelligence Surveillance Act of 1978, which predated the 9/11 attacks by nearly a quarter century. Trying to strike a balance between liberty and security was the reason for the 1978 act which created the Foreign Intelligence Surveillance Court which issued the secret but now leaked order. All judges who serve on that court are regular Article 3 federal judges appointed by the President and confirmed by the Senate.
Congress has often amended the FISA statute to fine-tune whether, when, and how the U.S. government can engage in surveillance to try to protect Americans from foreign threats. Federal judges make that determination on a case by case basis, not individual leakers in the federal bureaucracy.
The practice of obtaining the records, but not the content, of telephone calls pursuant to court order is standard practice not only in foreign intelligence surveillance, but also in domestic criminal prosecution. The internet presents new issues and challenges, but federal judges are the right persons to decide how existing legal principles apply to new facts and technology. Congress provides regular and informed oversight for all intelligence-gathering practices, and can amend the Foreign Intelligence Surveillance Act at any time.
By unilaterally revealing secret but legal surveillance practices, Edward Snowden has increased the likelihood that terrorists will be successful in avoiding surveillance and committing acts of terrorism. The blood of future American victims will be on his hands.
The United States must apprehend and prosecute the NSA leaker to demonstrate that we are still a nation of laws.