Getting Beyond the Benedict Arnold of the Cyber Age: Crafting Post-Snowden American Policy and Law

This past week brought more discomfort in the United States produced by Edward Snowden’s disclosures about NSA surveillance activities:

• The House of Representatives narrowly defeated a proposal to restrict NSA authority to collect telephone metadata in the United States, a vote that caused intra-party clashes within both the Democratic and Republican parties;
• Legislators in Congress grilled NSA officials on the NSA’s collection of telephone metadata within the US, producing testimony that only heightened congressional concerns about the executive branch’s metadata surveillance activities and their legal justification;
• The NSA released previously classified documents related to the now infamous Verizon Order leaked by Snowden, an effort at transparency that, apparently, did not make anything more transparent;
• Courtesy of Snowden, The Guardian revealed another NSA program, called XKeyscore, which caused another round of national and international controversy about US surveillance policies and practices; and
• The Russian government granted Snowden asylum for one year, allowing him to leave his limbo-laden life at the Moscow airport, a development that perhaps guarantees Snowden’s place in history (and not Bradley Manning) as the Benedict Arnold of the cyber age and made already fraying US-Russian relations worse.

To have Congress close to over-turning a key law passed after 9/11, to deepen tensions between the legislative and executive branches, to provoke the masters of secrecy to try to be more transparent, to wrong-foot the NSA again with a new disclosure, to cause rifts within both major US political parties, and to exacerbate problems between great powers is, ladies and gentlemen, one hell of a week, in more ways than one.

Each development of this past week deserves its own scrutiny, but my objective here is to try to assess what the sum of these episodes means for the US. The initial disclosures from Snowden brought forth calls for a “national conversation” about the implications of the revelations of NSA surveillance activities and the policy and legal justifications for them. This conversation has been extremely awkward because a proudly open and free society found itself debating critical issues kept secret by its government and only revealed by a law-breaker who sought succor in the sovereignty of anti-American governments. To quote one of history’s great admirers of the US, not our finest hour.

But, this past week should signal that the “national conversation” requires decisions needed to shape post-Snowden American policy and law on issues ranging from the privacy of American citizens dependent on digital communications technologies to the impact of cyber espionage on the power and reputation of the US in geopolitics. No one should underestimate the gravity of these decisions because the questions to be answered go deep into what America means at home and abroad. In its main leader of its August 3rd issue, The Economist–hardly an American nemesis–embeds the Snowden affair along with other post-9/11 policies in what it calls “liberty’s lost decade.”

Provocative, to be sure, but The Economist is trying to piece together what it all means for the US, from Mohamed Atta to Edward Snowden, and is encouraging Americans to re-evaluate where their government has been–from detention cells in Guantanamo Bay to “collecting it all” in cyberspace–and whether and how they want the future to be different. We might not like the headlines, the harsh questions, and the flippant or cynical condemnations of American behavior as hysterical hypocrisy. But, when someone like Edward Snowden can affect this country’s domestic politics and foreign affairs as wrenchingly as he repeatedly has (see, this past week), we have serious work to do in crafting policies and laws less dependent on the fear secrecy breeds and more confident in the resilience openness brings when betrayal from within and enmity from without test our interests and values.