Seriously, Geoffrey Stone?

Goeffrey Stone is a law professor and former dean at the University of Chicago Law School, a generally well-respected one. But his reaction to Edward Snowden’s leaking of the details of the government’s illegal spying is breathtakingly ridiculous.

In my judgment, based on what I know from the media thus far, Snowden is neither a hero nor a traitor, but he is most certainly a criminal who deserves serious punishment. What should he have done? Probably, he should have presented his concerns to senior, responsible members of Congress. But the one thing he most certainly should not have done is to decide on the basis of his own ill-informed, arrogant and amateurish judgment that he knows better than everyone else in government how best to serve the national interest. The rule of law matters, and no one gave Edward Snowden the authority to make that decision for the nation.

Is he freaking serious? If the rule of law matters, and I certainly agree that it does, then revealing the government’s clearly illegal actions is supporting the rule of law, isn’t it? Snowden took an oath to support the Constitution, not the government, and there is no doubt that collecting otherwise private data on everyone who uses a cell phone in this country is a clear violation of the 4th Amendment.

And he isn’t making any decision for the nation, he’s giving the nation an opportunity to make an informed decision. That is not possible when the citizens don’t have any idea what their government is doing to them. Holy shit, this is just pure idiocy.

22 comments on this post.
  1. trucreep:

    Well said – Snowden is the one enabling us to have this debate, not the President, not the Congress, not the Judiciary. Not even the fucking media that’s supposed to keep a watch on the government.

  2. doublereed:

    Well, Snowden did sign an NDA, and he clearly broke that. Taking a middle ground that he is not a traitor, but a criminal, isn’t that crazy.

    Although it does raise the question of what he could have done and still remain inside the law.

  3. schism:

    responsible members of Congress

    Yeeaahhh, that might be a problem.

  4. Chiroptera:

    Three seem to be an awful lot of people who hold the 18th century idea of democracy: vote for the faction among the elites you think will govern best based on their say-so, and in the meantime shut up and do as you’re told.

  5. Ben P:

    Probably, he should have presented his concerns to senior, responsible members of Congress

    The talking point from the conservative on NPR yesterday was that he should have got to the Inspector General or his boss at the NSA.

  6. chilidog99:

    I’m still not convinced that the government has broken any actual laws. They did have a warrant for the data, did they not?

  7. doublereed:

    I’m still not convinced that the government has broken any actual laws. They did have a warrant for the data, did they not?

    They had a warrant for every person in America? No.

    I think they had judicial permission, but it’s never been challenged in court because it’s secret.

  8. Ben P:

    I’m still not convinced that the government has broken any actual laws. They did have a warrant for the data, did they not?

    It’s a bit like the “enhanced interrogation.”

    Whatver they are, the NSA is not stupid. They had plenty of ass covering, namely, a secret legal opinion which justified what they were doing under the statute. The contents have not been revealed, but the arguments made in public hint at what it probably says.

    The Foreign Intelligence Surveillence Act prohibits the NSA from intentionally conducting surveillance on persons inside the United States, with some exception like “unless the Foreign Intelligence Surveillance Court” finds that it is part of a specific investigation necessary to protect the national security of the United States.

    The two main programs releases so far
    1. Coercing telephone companies to give up “metadata” on all their phone customers, i.e. call numbers, times, dates, etc.
    2. PRISM – which specifically attaches to fiber lines coming into and going out of the country, and monitors electronic data on those lines.

    Based on arguments made in public by government officials and think tank people, I strongly suspect the “Secret interpretation” of the FISA says one or more of the following things.

    1. Collecting “metadata” is “not surveillance” because it is not obtaining the contents of any communication. Established 4th amendment case law says you have no reasonable expectation of privacy (and therefore no standing to challenge under the 4th amendment) government searches of Metadata because such information has already been disclosed to to the phone company.

    2. The NSA will obtain FISA warrants for any time they do want the content of phone communications.

    3. PRISM, by technically focusing on overseas communications and some further alorithmic manipulation passes muster as “not targeting American Citizens.”

    4. Approval by the FISA Court and disclosure to congressional leadership is sufficient for both of these programs

  9. regexp:

    I’m sympathetic to the argument based on Snowdens statements and actions to date. He comes off as an ignorant arrogant ass who is most likely looking for a book deal. Not some idealist who is doing this for the good of the country. His latest statements about “believing in the rule of law of Hong Kong” is just mind bogglingly naive. And the Guardian has had to walk back many of its sensationalist statements.

    And as someone who does deal with these warrants from time to time – the fact that the government sought to build a system to help streamline the process is kind of impressive. The last time I was asked to fulfill an warrant I had to deliver the information via CD ROM.

    there is no doubt that collecting otherwise private data on everyone who uses a cell phone in this country is a clear violation of the 4th Amendment.

    Is it private? We make the assumption in InfoSec that anything that travels over the air or over the internet is not private. But considered public. Which is why we insist on things like encryption.

  10. chilidog99:

    Would it make any difference if they simply purchased the data like the marketing companies do?

  11. thebiggs:

    I had Stone for two courses, one on freedom of speech and one on evidence. My impression of him was always as a more liberal individual in a school that prides itself somewhat on being closer to center right. This article really surprised me. Between this and the Eric Posner articles defending the government spying programs, I am really ashamed of my law school right now.

  12. d.c.wilson:

    I’m still not convinced that the government has broken any actual laws.

    Yeah well, it is likely that everything the NSA did was perfectly legal and that’s a major problem. It shouldn’t be legal but the likelihood of Congress repealing any of these post-9/11 laws is about nil.

  13. kingoftoasty:

    Well, Snowden did sign an NDA, and he clearly broke that. Taking a middle ground that he is not a traitor, but a criminal, isn’t that crazy.

    I’m not a lawyer, but it seems to me that a contract drawn pursuant to criminal activity (i.e. warrantless government spying) is invalid and therefore violating that contract by revealing the government’s illegal activity would in fact not be criminal.

  14. tsig:

    America seems scared of freedom.

  15. Who Knows?:

    We’ve been having the debate for years now, and this is pretty much how it’s gone.

  16. doublereed:

    I’m not a lawyer, but it seems to me that a contract drawn pursuant to criminal activity (i.e. warrantless government spying) is invalid and therefore violating that contract by revealing the government’s illegal activity would in fact not be criminal.

    Snowden’s not a lawyer, either. Obviously it’s terrible precedent for people with clearances to use their own personal judgement of what’s legal or not to decide to disclose government secrets.

    Though what you’re saying sounds pretty sensible to me.

  17. Scott Hanley:

    America seems scared of freedom.

    Not mine. Just yours.

  18. zmidponk:

    Snowden’s not a lawyer, either. Obviously it’s terrible precedent for people with clearances to use their own personal judgement of what’s legal or not to decide to disclose government secrets.

    Maybe Snowden thought that, when the law is so snarled up that there’s a question-mark over whether the government actually broke the law by apparently simply disregarding the existence of the 4th Amendment, the time has come to basically do what seems to be the right thing and not care whether it’s legal or not.

  19. kingoftoasty:

    @ doublebreed

    I can’t for the life of me understand how anyone could believe that it’s terrible precident for someone with first-hand knowledge of rampant, unapologetic, secretive lawbreaking by the federal government (an agency, by the way, which holds as one of its many purposes to uphold the law) to expose said lawbreaking to the victims of the crimes.

    And as far as Snowden not being a lawyer is concerned, one doesn’t need to be a constitutional scholar or a lawyer to recognize that sweeping, warrantless surveillance of the phone records of millions of Americans is obviously illegal under the fourth amendment.

    And even were I to grant that his whistleblowing was in fact criminal, I would make the argument that when doing the legal thing fails to comport with doing the rightthing, that he was fulfilling his ethical obligation to his fellow citizens and was therefore justified in breaking a law that fails to provide justice to the governed.

  20. slc1:

    I seem to recall that the current occupant o the White House is a former professor at the Un. of Chicago Law School.

  21. doublereed:

    And as far as Snowden not being a lawyer is concerned, one doesn’t need to be a constitutional scholar or a lawyer to recognize that sweeping, warrantless surveillance of the phone records of millions of Americans is obviously illegal under the fourth amendment.

    You’re right. They should be a judge.

    Can you imagine if some christian theocrat broke an NDA because “this is a Christian Nation” and he was fulfilling his Christian duty or some such? Of course it’s a terrible precedent. NDA is a serious friggin’ contract. My personal feelings about the law is not law.

    And even were I to grant that his whistleblowing was in fact criminal, I would make the argument that when doing the legal thing fails to comport with doing the rightthing, that he was fulfilling his ethical obligation to his fellow citizens and was therefore justified in breaking a law that fails to provide justice to the governed.

    Yea I could see that. I would also argue that because he has complete knowledge of a crime happening, it would be impossible for him to not break the law. Though I’m not sure.

  22. hunter:

    “And he isn’t making any decision for the nation, he’s giving the nation an opportunity to make an informed decision. That is not possible when the citizens don’t have any idea what their government is doing to them.”

    That’s the whole point. We couldn’t even be having this discussion without Snowden having revealed these programs. And for Stone to suggest that Snowden should have gone to his superiors or a “responsible” member of Congress reveals a staggering naivete. I don’t expect lawyers to necessarily see the larger picture at first — they deal in the minutiae of the law — but one would hope the former dean of a major law school would have that ability. I guess not.

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