For Snowden, the Punishment Should Fit the Crime
Policy + Politics

For Snowden, the Punishment Should Fit the Crime

Edward Snowden, the spy who’s headed for Ecuador after leaving Hong Kong over the weekend, is wanted by the U.S. government for espionage. If you think leaking information about sensitive NSA surveillance programs is an aberration, one man says: Guess what? There will be lots more like him.

James Goodale is a leading First Amendment lawyer who served as chief counsel for The New York Times on the Pentagon Papers case. His new book, Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, details the precedent-setting case that tested the Constitution and reinforced the rights of a free press.

Goodale says we’ll see more leaks like Snowden’s and that the Snowden affair has set us on the brink of a “meaningful discussion” about what the U.S. government regards as secret and why.

In the digital age, it’s very difficult to control the flow of information, Goodale said in an interview with The Fiscal Times. “This is true not just in government but in business as well. Everyone’s on email. It’s all out there. So we must reevaluate what is regarded as secret and what is not. The Snowden case proves things are going to leak out anyway – so the question becomes: What do you do about it?”


Goodale says there’s no doubt that many others had access to the same information Snowden did. “Look at Bradley Manning (the U.S. soldier who passed classified material to WikiLeaks after downloading it from databases while stationed near Baghdad). Manning was a private in the army. Snowden wasn’t even a government employee – he was a contractor without a high school education. Everyone’s got access. And to think we can keep it all secret is nuts.”

Goodale shared more thoughts with The Fiscal Times:

“President Obama said we should have a national discussion about the reasons for the phone surveillance. But let’s go back in time to 2006-2007, when virtually the same leak was published by The New York Times about what’s now known as PRISM. It was written by James Risen, who won the Pulitzer Prize for it.” (Risen, along with Eric Lichtblau, won a Pulitzer Prize in 2006 for a series of articles about the NSA surveillance of international communications and about the government’s Terrorist Finance Tracking Program, which was designed to detect terrorist financiers.)

“President Bush said publication of the material would result in ‘blood on the hands of The New York Times.' And that story was held for a year. Well, we’ve now gone from ‘blood on the hands of the publisher’ to ‘this should be the subject of a national discussion.’ Something viewed as highly secret has now become highly public – and the president has welcomed it. That tells you it should have been public in the first place.

“We have to rethink as a country our views of so-called sacrosanct information. We’ve got to discuss the NSA, what it does, how it obtains information. We’ve got to change the public’s attitudes toward the privacy and secrecy of information and then govern accordingly.”

“The answer to the control of information, once you’ve made a decision to let more of it out, is cryptography,” says Goodale. “Cryptography is unbreakable. The code makers know perfectly well that if the enemy gets their codes, the U.S. can’t break them, or very quickly at least. The use of cryptography in a commercial way or an easier way by the government is the solution.

“In the Manning case, the army did not use appropriate cryptography. After the leak, a government official told Congress the information had been inappropriately encoded and they were going to change the system. If you ask, Wow, how did Snowden get the information and why is this stuff floating around – the answer is, it should have been encrypted. He should not have been able to get hard copies. You’re going to have an inconvenient encryption of information and people are going to have to learn how to use it.”

“The message I get from these leaks is: Don’t believe the government when they say their information is secret and the world’s going to come to an end when it gets out. That’s just not true. Particularly in the Snowden leak, the information’s been out there. All you have to do is go find it. The idea that security’s being damaged is invariably wrong.

“For those who think otherwise, they’re entitled to think that way. But they just don’t know. If you snoop around, you can find stuff all over the place.”

“The punishment has to fit the crime. You have to ask: How damaging was Snowden’s leak? If President Obama says the information that was leaked should be part of a national discussion, then you have to say, Well, Snowden has contributed to that discussion. If he hadn’t leaked it, we wouldn’t be having a discussion about it. He is a civil disobient – and civil disobients do their act and then they’re ready to accept their punishment. With all of the views out there on the far right, the far left – we’ll probably need to compromise when it comes to what properly ought to be done.”