I don’t know what Edward Snowden’s actual opinion of nullification is, but the essence of his heroic whistle-blowing is consistent with the principle. While this episode continues to unfold, a number of apologists for the NSA’s domestic espionage have suggested that even if he meant well, Snowden’s methods were inappropriate. Rather than transfer reams of classified intelligence material to investigative journalists, they say, Snowden should first have gone through official channels.
Author and former CIA officer Michael Davidson recently said in an interview that a number of options exist for members of the government to lodge formal complaints. Among those channels are supervisors, inspectors general, and individual members of the congress. Any of these could have assisted Snowden in raising awareness of the problems he saw, while maintaining operational security of the programs. So says the government agent.
It should be patently obvious that such official channels are bound to fail for anyone serious about correcting unlawful behavior. If any of Snowden’s supervisors were likely to help put an end to the unconstitutional programs being carried out by the NSA, it’s reasonable to assume they wouldn’t have needed his prodding in the first place. Surely if he was aware of the offenses so too would have been those in the ranks above him. If they were inclined to be faithful to the 4th Amendment, they shouldn’t have required any urging from a subordinate.
A similar argument could be raised regarding the inspector general. It’s possible – and indeed likely – that the inspector general’s office was unaware of the extent of the spying. It’s also possible that such an officer would be inclined to investigate claims of secret data mining and storage of private communication between Americans, especially if there was suspicion of it being carried out in violation of the orders from the FISA courts.
This does not however mean that such an investigation is going to lead to the exposure of the program or it being ended. Nor does such a report guarantee the safety and freedom of the one making the complaint. Indeed, filing such an investigation is likely only to bring hardship on the individual, and without the benefit that leaking information about the program to reporters has garnered.
This last option, going to congress, is so preposterously ineffective that it’s a wonder anyone can suggest it with a straight face. Congress authored the legislation that authorized the spy programs in the first place. Congress established the FISA courts, it approves the appointment of senior government officials, and it supposedly provides oversight of the NSA and other intelligence agencies. Why should anyone believe that some senator is going to be troubled with exposing the program and asking serious questions as to the legitimacy of this activity?
By some accounts there were at least two senators who did learn of the program and attempted to alert the public. Senators Ron Wyden and Tom Udall each were reportedly briefed on some of the details concerning the NSA’s programs and were troubled by what they heard. Their concern over domestic spying goes back at least two years. Despite such displeasure for this, it wasn’t until Snowden’s whistle blowing that the general public was alerted to what was being done with their money and in their name. Other members of congress have been made aware of this extra-legal snooping as well, and they weren’t raising any alarms with their constituents. Could it be that congress is either entirely impotent when it comes to providing a check against executive power, or is complicit in expanding the same?
In effect, anyone suggesting that whistleblowers use official channels is advocating a non-solution. In this regard it’s no different than when opponents of nullification condescendingly suggest appealing to the courts or electing new representatives to overturn unconstitutional legislation. What they are really saying is: here, try this wholly ineffective method and go away.
But for anyone really interested in affecting change, this answer isn’t good enough. It clearly wasn’t good enough for Edward Snowden, nor was it acceptable for Bradley Manning or Daniel Ellsberg, when each leaked classified, damning evidence of wrong-doing on the part of government. Neither is such a flippant response good enough for nullification proponents. Using official government channels to correct government abuses in theory makes no sense; empirically this has certainly been the case, as shown above.
Rather than wait for someone in a position of authority in government to make the right decision, the people, through the states, should take a proactive approach. This means opposing directly what is being done at the federal level. This needn’t however only take the form of states nullifying federal laws. The Tenth Amendment Center has for the past seven years made it clear that individual acts of nullification, often described as peaceful noncompliance, or the Rosa Parks method, are just as effective. Adding whistle blowing to the list only seems logical, at least in the sense of bypassing the officially approved (read: ineffective) channels, and saying “no!” If it helps put an end to federal overreaches, all the better.
It’s difficult to know for sure if we will have more whistleblowers like Manning and Snowden. It’s widely known that the current administration has used the espionage act more than all previous administrations combined. In fact, with the latest news that Snowden has been charged with espionage, the total of seven now is more than double the rate of all previous presidents. Despite this policy, which Glenn Greenwald describes as excessive and vindictive, more individuals from within the federal government are still coming forward.
Given the vast and secretive nature of the federal government, it’s critical for activists and advocates of personal liberty to be aware of the goings-on in D.C. and elsewhere. As Snowden famously put it, “the public needs to know the kinds of things a government does in its name, or the ‘consent of the governed’ is meaningless.” Whether you believe that consent is even remotely compatible with an institution predicated on coercion or not, shedding light on the whole apparatus is necessary in order to ever hope for a rollback. To this end we can only trust that more such revelations will be forthcoming.