October 14, 2015 2:56PM

Snowden, Surveillance, and Democrats: Debate Observations

The first debate among Democratic presidential contenders was more than half over before moderator Anderson Cooper of CNN got around to asking a question about the biggest intelligence scandal in more than 40 years. You can read the full transcript here but the exchanges between Cooper and the candidates on Edward Snowden (via Ars Technica) is what's worth the read:

COOPER: Governor Chafee, Edward Snowden, is he a traitor or a hero?

CHAFEE: No, I would bring him home. The courts have ruled that what he did—what he did was say the American...


COOPER: Bring him home, no jail time?

CHAFEE: ... the American government was acting illegally. That's what the federal courts have said; what Snowden did showed that the American government was acting illegally for the Fourth Amendment. So I would bring him home.

COOPER: Secretary Clinton, hero or traitor?

CLINTON: He broke the laws of the United States. He could have been a whistleblower. He could have gotten all of the protections of being a whistleblower. He could have raised all the issues that he has raised. And I think there would have been a positive response to that.

COOPER: Should he do jail time?

ClINTON: In addition—in addition, he stole very important information that has unfortunately fallen into a lot of the wrong hands. So I don't think he should be brought home without facing the music.

COOPER: Governor [Martin] O'Malley, Snowden?


O'MALLEY: Anderson, Snowden put a lot of Americans' lives at risk. Snowden broke the law. Whistleblowers do not run to Russia and try to get protection from Putin. If he really believes that, he should be back here.

COOPER: Senator Sanders, Edward Snowden?

SANDERS: I think Snowden played a very important role in educating the American people to the degree in which our civil liberties and our constitutional rights are being undermined.

COOPER: Is he a hero?

SANDERS: He did—he did break the law, and I think there should be a penalty to that. But I think what he did in educating us should be taken into consideration before he is (inaudible).

COOPER: Senator [Jim] Webb, Edward Snowden?

WEBB: I—well, I—I would leave his ultimate judgment to the legal system. Here's what I do believe. We have a serious problem in terms of the collection of personal information in this country. And one of the things that I did during the FISA bill in 2007, the Foreign Intelligence Surveillance Act, was introduce with Russ Feingold two amendments basically saying, "We understand the realities of how you have to collect this broad information in the Internet age, but after a certain period of time, you need to destroy the personal information that you have if people have not been brought—if criminal justice proceedings have not been brought against them."

We've got a vast data bank of information that is ripe for people with bad intentions to be able to use. And they need to be destroyed.

Clinton and O'Malley were wrong that Snowden could have safely reported his concerns. As the Government Accountability Project noted last year:

Moreover, at the behest of the House Intelligence Committee, strengthened whistleblower protections for national security workers were stripped from major pieces of legislation such as the Whistleblower Protection Enhancement Act (for federal employees) and the National Defense Authorization Act of 2013 (for federal contractors). If those protections existed today, Snowden's disclosures would have stood a greater chance of being addressed effectively from within the organization. 

So in reality, then-House Intelligence Committee Chairman Mike Rogers (R-MI), by opposing whistleblower protections for intelligence community contractors, actually shut down a channel for receiving classified whistleblower complaints from Snowden and those like him.

Lincoln Chafee of Rhode Island showed political courage not simply in defending Snowden, but in pointing out that Snowden exposed mass surveillance that several non-FISA court judges believe violated the Constitution. Chafee could also have pointed out that none of those officials--including former President George W. Bush, his Attorney General, and his NSA director--have been investigated by either an independent counsel or even the Congressional committees of jurisdiction for their actions. The tutorial on recent surveillance scandal history would have been  even more powerful if Chafee or another candidate had noted that the federal government wants to charge Snowden under the Espionage Act (normally used to prosecute actual spies who pass classified information to foreign governments) even though it gave former CIA Director David Petraeus an incredibly lenient plea deal after Petraeus passed documents containing Top Secret/Sensitive Compartmented Information (TS/SCI) to his then-mistress, Paula Broadwell. The contrast in treatment between the two is telling.

Another important exchange between Cooper and Clinton involved her vote on the 2001 PATRIOT Act:

COOPER: Secretary Clinton, do you regret your vote on the Patriot Act?

CLINTON: No, I don't. I think that it was necessary to make sure that we were able after 9/11 to put in place the security that we needed. And it is true that it did require that there be a process. What happened, however, is that the Bush administration began to chip away at that process. And I began to speak out about their use of warrantless surveillance and the other behavior that they engaged in.

We always have to keep the balance of civil liberties, privacy and security. It's not easy in a democracy, but we have to keep it in mind.

In fact, by the time the PATRIOT Act was up for renewal in 2006, two national investigations--one by the Congressional Joint Inquiry, the other by the 9/11 Commission--found that it was not a lack of intelligence collection that led to the success of the 9/11 attacks, but a failure of the FBI, NSA, and CIA to share among each other the information they had on the terrorists. And as the New York Times' Charlie Savage has found in his research, an Intelligence Community Inspector General investigation into the STELLAR WIND warrantless surveillance program initiated after 9/11 found that it prevented no attacks on the United States. The same is true of the PATRIOT Act Sec. 215 telephone metadata program

The only candidate who seemed to have learned the correct lesson from this history was Sanders:

COOPER: ... and the reauthorization votes. Let me ask you, if elected, would you shut down the NSA surveillance program?

SANDERS: I'm sorry?

COOPER: Would you shut down the NSA surveillance program?

SANDERS: Absolutely. Of course.

COOPER: You would, point blank.

SANDERS: Well, I would shut down - make - I'd shut down what exists right now is that virtually every telephone call in this country ends up in a file at the NSA. That is unacceptable to me. But it's not just government surveillance. I think the government is involved in our e-mails; is involved in our websites. Corporate America is doing it as well.

If we are a free country, we have the right to be free. Yes, we have to defend ourselves against terrorism, but there are ways to do that without impinging on our constitutional rights and our privacy rights.