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Harvard Kennedy School lecturer Chris Robichaud takes us through a new case study exploring the question of whether NSA whistleblower Edward Snowden was justified in leaking classified materials exposing the breadth of the U.S. government’s surveillance activities on this week's episode of HKS PolicyCast, the Kennedy School's weekly podcast.
The following transcription has been edited for length and clarity:
MC: Hello, and welcome to the Harvard Kennedy School PolicyCast. I’m your host, Matt Cadwallader, and today we’re joined by Chris Robichaud, a lecturer in ethics and public policy here, at the Kennedy School, who’s the sponsor of a new case study focused on the question of whether Snowden is a hero or a traitor. Thanks for joining us, Chris.
CR: Thanks for having me.
MC: Before we get into the details of Snowden in particular, can you describe the case study? What it is, how it’s used in teaching, and why this issue got your attention.
CR: Absolutely. So, in general, we try to use cases here [at Harvard Kennedy School] for a variety of pedagogical tasks. My interest in it was from an ethics standpoint. I teach multiple courses here in ethics, including a required ethics class, Political Ethics, for all of the master’s students in public policy. And, so, what we do with a case is we write up, in an ideally objective way – a situation, something that happened, someone who did something, etc. – we document it very well, we present a narrative, and then we give it to students to mull over, and we lead a discussion over an entire class about that case. And my interest is, typically, in the ethics of a variety of cases.
What caught my eye about Snowden, to answer that part of your question, is a good portion of the course to the master’s students in public policy is devoted to having them think very carefully about balancing their personal morality against the morality that comes with the professional roles that they will be adopting. And Snowden is a great example of someone who did that. He had a strong view of political values that run through this country. Then he had a view of what his role was. That’s one of the reasons why I picked Snowden.
I think maybe the other reason is, he’s young. I mean, this wasn’t a whistleblowing case where someone high up the ladder decided to just break everything open. This is someone in his 20s, who had access to unbelievable amounts of information, and I think a lot of students may find themselves in a position like that. So, it hits home.
MC: I think it’s interesting you bring that up. Tom Ricks, a national security reporter, wrote a little while back that, when he was debating whether what Snowden did was right or wrong, he was leaning against it except for the fact that everybody under 30 who he talked to thought that Snowden was a hero.
CR: Well, I can speak to that. I’ve run this case twice now and, so we’re looking at a sample set of about a hundred students, 50 a class, and what makes this case great, in my opinion, as an instructor, is folks, even under 30 – since that’s most of the students I’m teaching – are completely divided on this.
CR: Almost evenly. In fact, the way that I start teaching this case is, I say, all right, how many of you think that what he did is morally permissible, all things considered? About half of them raise their hand. And I say, all right, you get on one side of the room, everyone else get on the other side of the room, and we’re going to talk back-and-forth this entire time. In both classes it was like that. In talking to my colleagues, it was similar in their classes. So, this has a lot of legs for this very reason. Students, when working through the case and really thinking about it from a standpoint of political ethics, come out on different sides.
MC: So, can you actually talk a little bit about the two sides, what are the basic tenets of both?
CR: Focusing on ethics, for folks who think that what Snowden did was morally permissible, almost everyone’s calculation includes weighing the benefits against the costs, of course. For them, the benefits vastly outweigh the costs. The benefit here was that there was a strong belief amongst people who thought that Snowden was doing a good thing, that a harm was being done to us through the spying, a significant harm to the American people. There was the belief that it was highly unlikely that this harm would ever see the light of day without Snowden or someone else doing something like what was done. That relying on the mechanisms of power to reveal this was relying on the wrong source, and they would point to things like senators who kept publicly saying we’re seeing how the Patriot Act is being interpreted and you should be worried, and that not going anywhere. And so the thought was, a significant harm was being done to the American public and there were no normal mechanisms through which that that harm would see the light of day, and then couple that with the fact that Snowden did have a responsibility, he did sign pieces of paper that said, “I won’t do this.” So, they didn’t ignore those facts, but they thought that was trumped by other things.
On the other side of it, folks will typically say, well, he could have pursued other legitimate avenues before doing this and he did significant harm to the nation of a different sort, a national security sort. And then there are some who are deeply suspicious of his intentions. So, the case itself remains agnostic on this because no one can get inside someone’s head. It just says what he says, but some folks are really suspicious of what he did after leaking and about putting himself out there, and ending up in Russia, and so they think that intentions matter in a case like this, and they infect any good that might have come out of it. So, that’s roughly the balance that you see going back and forth.
MC: So, one of the mechanisms that you point out in the case is the Intelligence Community Whistleblower Protection Act, which allows a national security worker to, if he finds some kind of fraud or abuse, to be able to bring it to either the Inspector General of a federal agency or any Congressional Intelligence Committee member. That seems like it could be the first way to reach the public, if he wanted to go through legal avenues. Why wasn’t that pursued?
CR: It’s a really good question. When we wrote the case, I don’t know if his thinking on that had been uncovered yet or not, or if we have yet. We can ask the hypothetical, whether we’re ever going to learn, really, why or not ought he have. I think with whistleblowing, my view is, whenever we look at a whistleblower, there always seems to be a group of people that say, well, why didn’t you just do this first, or that first? And sometimes that is a reasonable demand, and sometimes it isn’t. In the case of Snowden, I can at least put myself into his mindset and say, look, his target, broadly, is all these exact people.
CR: I mean, it’s an indictment of them. He’s being asked to go to people who, in some sense, are the target of his whistleblowing, and ask their permission to target them, you know? And, so, you might think, he’s at least asking them to do something about an activity that he thinks is problematic, of which they might be involved. I think you take that and you couple it with his concern, which is not unreasonable, that, yes, that might have worked. What might have also happened is that he was completely shutdown, he loses any chance to bring this to the public at all, maybe trumped up charges are brought against him. That sounds paranoid, but this country has been pretty aggressive when it comes to these sorts of folks, and I think you do have to balance those things. You know, it’s a hard judgment call. Yes, I could maybe go to this official source, but if the official source says, leave it alone, is that all that the official source is going to say, or am I going to find out that I have a new job suddenly, and I’ve lost my window. I don’t want to think too much about “what if?” but when challenging power of this extent, I think that we should be at least charitable in appreciating the view that you don’t want to go through the channels that power has set up for you to challenge it.
MC: So, you actually point out in the case a few predecessors, really, to Snowden who…
CR: Like Chelsea Manning.
MC: Exactly. Who revealed NSA secrets and went through the process that Snowden may have. Did that inform his actions or at least our perception of his actions?
CR: I think it should inform our perception of his actions. He says that he paid quite a bit of attention to these things, but, as I mention, this is one of the concerns: our track record here with whistleblowers regarding national security is not good. And some people are going to say, well, it shouldn’t be good, this is ridiculous. We can’t have a properly functioning government that protects us unless we have secrets, and, to some extent, that’s, of course, true. No one really denies that, but Chelsea Manning, we locked her up and threw away the key for I don’t know how long before even getting around to a trial, you know? And then the trial happened and now she’s locked up and the key’s thrown away again. And that’s just one example. It doesn’t instill confidence that the process is just.
MC: Of course, she was a military member going through that process, as opposed to a civilian trial.
MC: Right. So, I get the sense that, lately, the tide has been turning a little bit against Snowden. And I get it, in particular, because the place where he ended up, Russia, has been a perpetrator against human rights for so long. I know Tom Ricks, who I mentioned earlier, even Matt Lauer very recently, have both been admonished by Snowden’s collaborator, Glen Greenwald, for pointing out that conflict. Do you think that’s a fair point, the fact that he ended up there?
CR: I think from the standpoint of explaining why people might have ill-will toward Snowden, it makes perfect sense to point to the fact that he’s in Russia because people don’t like Russia. We’re not supposed to like Russia, that’s what we’re told, and there are some objective reasons to not like Russia, obviously. But, then again, there are some objective reasons not to like us, you know? The point here is that we don’t like Russia. Snowden’s now in Russia, and Snowden revealed national security secrets, and you can see how, if you just keep it at that level, people are, like, “well, this guy must be a traitor,” or “how could you end up there?” But, to me, that’s like the most basic level of evaluating this thing. How did he end up there? Was this a master plan or was it just that he had nowhere else to go? He spent some time in an airport. I can’t imagine that that was terribly exciting to him. Honestly, I can’t imagine it’s really exciting that he’s in Russia right now. I mean, whatever the public face he wants to put on that, I would probably guess that he’d rather not be there.
MC: It’s probably a significant downgrade from being in Hawaii and getting paid six figures.
CR: Exactly. So, I don’t think that we should put too much stock in this. We haven’t seen how this whole thing plays out. I wish this country would reach out to him – maybe it has – and try to come to some agreement. Maybe Greenwald, help broker that, where we won’t pursue the death penalty, or we won’t even pursue a traitor trial, but you do have to face charges, but come home.
MC: So, fundamentally, this is about civil disobedience, really?
CR: Of a sort, yeah.
MC: In the case, Glen Greenwald is quoted as saying that, although Snowden likely broke the law, he “made his choice based on basic theories of civil disobedience.” And so Snowden, himself, said that the disclosure gives President Obama an opportunity to return to “the rule of law, rather than men.” So, for me, that brings up Martin Luther King, Jr.’s letter from a Birmingham jail, in which he says, “One who breaks an unjust law, must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice is, in reality, expressing the highest respect for law.” Now, I can’t help but feel like the fact that Snowden actually ran away, he tried to elude capture, kind of undermines his argument that he’s trying to make change, and kind of undermines his stated belief in the rule of law.
CR: Sure. And that’s an interpretation a lot of people share with you. The other side of that, just to push back a little on the reverend’s thinking: accepting the penalties that the law will provide makes sense only if you think that system of law is, itself, just. It makes no sense to say, well, you should break an unjust law and then subject yourself to legal sanction, if that legal sanction is also judged to be unjust. I think one thing that concerns Snowden, that we may all ask about, is whether there is justice here with said whistleblowers? To my mind, it makes no sense that someone who did what Snowden did should ever face the death penalty. And, yet, there is a way of construing what he did where he might face trial for just that. And, to me, if you’re whistleblowing and you say to yourself, it would be wholly unjust for me to face death for doing this, I don’t see why it’s reasonable to demand that – I mean, Socrates was on board with that, and he died. You need to evaluate the laws that would determine your fate, and whether you think that those are unjust. So, I don’t see Snowden’s actions, personally, as ones that advertise themselves as being an indifference towards any penalty. I see them as protecting himself from harms that he think would be unjust, done to him by the state.
MC: Do you think it’s undermined, in terms of public perception, his efforts in that regard? Specifically about the revelations, not even about himself.
CR: I think, yes, absolutely. In part, a distinction that I really impress upon my students is: evaluate the act, evaluate the actor. And those two things don’t necessarily go together. They might go together, but they don’t need to. So, we should be clear about evaluating the action; was this act of whistleblowing done for these reasons, let us say, permissible? All right, now let’s talk about Snowden and evaluate him, as a person, and as, you know, an actor, and you might come out with saying he did a permissible thing, but should face some kind of moral indictment. I think it’s important to keep those things apart. In the public’s eye, they typically get blended together pretty easily, so, if folks have bad feelings toward Snowden, it’s going to infect their assessment of his actions. That’s just a natural thing that you have to be trained to remove yourself from.
MC: Right. So, what do you expect your students to come away with after going through this process? I mean, I suppose the majority of people who are listening to this aren’t going to have that experience, but, you know, what’s the take-away?
CR: It’s a great question. So, I think one of the take-aways is leaning on an apparatus to help you think through these things for yourself. And, so, we introduce a framework by my colleague, Arthur Applbaum, which is, think about cases like this in terms of the good, the just, and the legitimate. And think about how you would have judged these things, but also how the actor did. So, we can evaluate an action according to the good that it produces, whether it’s in concert with what we evaluate to be just, and whether it’s legitimate. And if you think that a certain policy, for instance, is both – bad, produces a lot of bads, and is unjust, and may not even be legitimate, then that gives you a ton of reason to push back on it. And if it is just and legitimate, but you just think it’s a bad policy, the thought is, well, then you have less, you know, options available to you. You should seek out more standard means.
So, I want students to use that apparatus to think about cases that they will confront. I also think that a case like this is good to have them really wrestle with what would they be willing to do, how far would they be willing to go for something that they firmly believed in. And it’s also good, I think, to have them think really carefully about tensions between the legitimacy of government and the good that it can do, and the harms that it can do. You know? And there’s always going to be tension there, and the question really is, what do you put up with, in terms of harms, in order to promote the goods that it does, and when do you say, enough is enough? So the Patriot Act, ostensibly, was given to us to say, “we want to protect you.” That’s a good thing. But a lot of harm seems to be coming from it, unsurprisingly.
MC: Well, Chris Robichaud, thank you so much for being on PolicyCast today.
CR: Thank you very much.
"For folks who think that what Snowden did was morally permissible, almost everyone’s calculation includes weighing the benefits against the costs ... there was a strong belief amongst people who thought that Snowden was doing a good thing that a harm was being done to us through the spying, a significant harm to the American people."