This originally appeared in the Summer 2014 issue of STAND, the ACLU magazine.
Edward Snowden stirs passions among many across the world. After all, in June of last year he provided classified materials to journalists working with The Guardian and The Washington Post detailing the extent of the U.S. government's mass surveillance practices.
As a result, he is now being pursued by the most powerful government in the world. He faces a life of exile or imprisonment. He's physically isolated from his family, friends and lawyers. He's in the middle of an international maelstrom, having provoked the ire of U.S. government officials, and has even had threats made on his life. He's limited in his ability to receive advice and assistance from his lawyers, as no long-distance communication seems sufficiently secure.
In July of last year, the ACLU began providing Snowden with legal counsel. After "chatting" with him several times over encrypted channels, I flew to Moscow in January to meet him. I wanted to talk with him face-to-face and form my own opinion. My colleague at the ACLU, Ben Wizner, who serves as Ed's lead legal counsel, accompanied me and set up the meeting.
In Moscow, my first words to Ed were, "You look like your photographs." He chuckled, ushered us into the room and immediately put me at ease. In front of me was a personable, clean-cut young man—like any who would work at the ACLU.
We had a very animated conversation about the efforts to reform the U.S. surveillance programs. Ed's deep knowledge of the issues around surveillance and civil liberties is immediately obvious, but he actively solicits alternative viewpoints and feedback from folks who may know far less about the substantive issues. He doesn't sermonize or lecture. He listens to and answers questions.
We talked about the various surveillance-related lawsuits making their way through the federal courts. Ed had followed the ACLU's prior lawsuits closely and he was well acquainted with the frustrations we had felt before the U.S. Supreme Court in our case, Amnesty v. Clapper. There, ACLU lawyer Jameel Jaffer was bounced out of court by five of the nine Supreme Court justices because we could not prove that our clients had been subjected to surveillance. Of course, we couldn't prove that our clients were being surveilled because the surveillance was secret! It was a catch-22 that meant that no one would have standing to challenge the NSA's activities.
The short of all of this is: I admire Ed Snowden. I'm proud that my colleagues at the ACLU are serving as his legal advisers. I appreciate his actions, and I understand his motivations. And I was thrilled to sit down and speak to him. Here are some highlights from our conversation.
ANTHONY D. ROMERO
Here we are, sitting in a hotel room in Moscow. You're far away from your family and your loved ones. Your life has been disrupted. What do you want to come out of all of this? After you've risked so much of your personal life, what is it that you aspire to?
My main purpose [in providing the information to journalists] was simply to allow the average American to understand the policies of their government that they weren't asked about. And to allow us, as a civil body, to decide if we thought this was the right thing and the direction we want to continue in. There's a danger when the government is drafting and implementing policies in the dark, without the input of the voting public. Even the full body of Congress wasn't aware of these programs. Even members of the intelligence committees outside of the Gang of Eight didn't know about some of these programs. Being able to give that back to my country—being able to give the media its voice back, being able to give the public its voice back—this was about getting our seat back at the table of government. Now if I had my way—and I'm not going to impose my will on the country—I would see the government step back from dragnet surveillance, the sort of indiscriminate monitoring and collection of records from people even when they're not suspected of any crime or any sort of wrongdoing, and instead focus those resources—those billions of dollars that are being poured into mass surveillance—into the traditional methods of investigation and collection that we know work and keep us safe. Where the government focuses on individuals they suspect to be dangerous actors—people who have committed a crime or are planning to commit a crime—and really use the full range of their authorities, the totality of their capabilities, on the basis of warrants and reasonable suspicion, individualized suspicion. Because we really need to think about whether we want to live in a country where every time we pick up the phone, every time we write an email and every time we make a purchase, it's recorded. I don't think that's good for Americans and I don't think that's good for democracy.
The government has now collected in warehouses in Utah, unbeknownst to us, so many records of our private communications. Can we put the genie back in the bottle? Can we actually go back to a place where we can purge that data and force the government not to collect it?
I think that we need to do it carefully, because we've seen missteps in the past, such as the Protect America Act that passed in 2007. It was a stopgap between the warrantless wiretapping program of Bush and the FISA Amendments Act that sort of codified his illegal mass surveillance. What this stopgap measure did was let the government perform mass surveillance and then keep the database it created even after the law was no longer used, having been replaced by the FAA. And that's the danger — that even if we roll back the law, they'll hang onto these records in secret. But, that comes down to what we want and what we demand of our Congress. America has been through civil liberties crises before. We've been in situations where what was lawful was out of step with what was right. And, just like then, I think we can turn that back. I think we can reestablish that we have certain values that we're not willing to abandon, and that the Bill of Rights still means something.
Illustration by Shepherd Fairey
Why do you stick your neck out for it?
Because someone has to. Whenever we have these issues, someone has to be the first to step forward and say, "I don't agree with this," like the ACLU's Clapper v. Amnesty International case, where the Supreme Court ruled that the ACLU's clients had no standing to challenge the FAA. You go through the process and you try it in the courts, but if the courts abdicate their role—if they say, "Hey, we're not going to rule about this and we don't want to rock the boat"—then it comes down to everybody else. Whether you're a government employee who took an oath to the Constitution or a private citizen who supports civil liberties, we all have to do what we can to restore the balance of our rights. And when I think about having to leave my family behind, having to travel to a foreign place—as long as it buys a better future for my family and my country, then it's something that I'm willing to do.
The ACLU is one of those places where we take courage and comfort from folks like you who have the strength of your conviction. We have the easy jobs because we bring cases and advocate on behalf of clients and individuals. But it takes the courage of individuals who are willing to step forward as clients, whistleblowers or expert witnesses to really give life to some of these principles, because they can be so abstract. And part of the challenge we're catching up with is that the surveillance technologies have been so fast-moving that our laws—and even lawyers' knowledge of these programs—are so far behind. We talk about the need for a 21st-century Fourth Amendment that talks about unreasonable searches and seizures. What would that look like to you?
I think the 21st-century Fourth Amendment can actually be the same as the 20th-century, and the 19th-century and the 18th-century because it's written in such clear terms that it doesn't need to be rewritten. It's couched in language like "unreasonable search and seizure," right? If we have a specific reason—if we've got an oath or affirmation that there is probable cause to peel back and intrude upon the civil rights of a target individual—that's the traditional purpose of investigative authorities, whether it's a law enforcement investigation or an intelligence investigation. But the two parts of that which we have to keep in the 21st century are not only that unreasonable searches are prohibited, where the NSA can't go in and look at someone's information without a cause, but also the seizure. They can't collect your information in the first place unless they have a suspicion for doing so. It doesn't make sense. It's not reasonable for the NSA to collect every phone call of every American, or even the phone numbers or anything like that, without a suspicion justifying it. I sat at that desk, I named the targets, and I can tell you, it's dangerous and unnecessary. We don't need it to do the job.
Your biggest fear in outing yourself as the source of the NSA revelations was that you would have sacrificed your home, your family and even your freedom and that no one would listen. Was the sacrifice worth it?
Speaking truth to power is a dangerous thing, and I knew it would come with a price. But I swore an oath to defend the Constitution of the United States and I witnessed the NSA violating it on a massive scale. I knew what I had to do: I kept my oath. And it turns out it wasn't for nothing. In the wake of these revelations, all three branches now agree that we went too far in creating a secret program to intercept the communications of hundreds of millions of ordinary Americans. Federal courts have ruled the programs I revealed are Orwellian and likely unconstitutional, Congress has spent more time trying to restrain out-of-control spies than we've seen in 40 years, and two separate White House panels concluded the programs never stopped a single domestic terrorist attack. One of them even said the NSA's bulk data collection schemes had "no basis in law" at all. None of that would have happened without the involvement of ordinary citizens in this debate, and that's why an informed public is—and must remain—the foundation of our system.
There are a half-million ACLU members and 1,000 ACLU staff members nationwide. What do you want us to do? If you had to give us our marching orders, what would you want us to do on this set of issues?
The first action to take would be to make your voices heard and tell your elected representatives how you feel about mass surveillance. These programs have been defended on the ground that they keep us safe, but the record shows—from the president's review board, the Privacy and Civil Liberties Oversight Board, the federal court opinion of Judge Leon, and even congressional authorities—that they've never stopped a terrorist attack. They've never even discovered an unknown terrorist plot. But they've cost us billions and billions of dollars that could have been applied to effective means of investigation. And if you think that it's not good for our country to give up our civil liberties in exchange for programs that don't make us safer but actually put us at risk by wasting resources, you should come together with one voice, call Congress, and say it's time to end mass surveillance.