As Edward Snowden’s revelations about the extent to which our governments spy on us emerged, I discovered—with some exceptions—that my large-ish sample of US friends (N=approx 300) and my large-ish sample of British friends (N=also approx 300) came, over time, to react differently. The Americans divided evenly and quickly into two hostile groups. My Facebook newsfeed filled with words like “hero” or “traitor”.

There was little middle ground. British friends, meanwhile, were more equivocal, and not a few of them found  Glenn Greenwald conceited (journalists in Britain currently rank somewhere below politicians and used car salesmen, but a little above pedophiles, when it comes to public approbation). The British response was often a version of, “well done, but you must be very sure of yourself” or “brilliant, but could only have been done by someone who thinks he’s above the law”.

I found myself in huge disputes with both groups when I suggested that Snowden’s actions were morally complex and finished up leaving the topic alone after several Threads o’ Doom. Of late, however, sundry Americans have come over all British. First, there was this lengthy and thoughtful piece in Slate, and then there was Rand Paul.

Rand Paul made the strongly British point: “I don’t think we can selectively apply the law.” Note that Paul fils is not calling Snowden a traitor or engaging in silly hyperbole. Instead, he argues that he deserves some punishment, because an individual isn’t more important than the rule of law.

Why is this particularly British? Because the UK has no history of entrenched rights, and a much weaker tradition of individuals elevating their consciences above the law, an individual who breaks the law over here is expected to make like Martin Luther King and face trial (even if he or she pleads not guilty).

The most celebrated example en masse of this behavior was in response to the Thatcher government’s introduction of a Roman-style Poll Tax. So many people refused to pay the tax (but still nonetheless fronted up in court) that enforcement became impossible, and Britain had a Henry David Thoreau moment: either repeal the law or throw half the country’s population in the slammer. The government went with the former. Obviously this kind of thing only applies in developed liberal democracies. Similar behaviour in China would have resulted in a mass dose of lead poisoning.

In short, I’m not hugely happy with the idea of people breaking the law for reasons of principle (even when those principles are very high minded) and then being unwilling to take the rap if caught. If we all took it upon ourselves to break the law whenever we felt like it because reasons, things would go to hell in a handbasket pretty quickly. For every Edward Snowden there are people committing far more serious crimes they also believe to be sanctioned by their consciences: FGM. Honour killings. Vendetta. And applying it selectively is the fastest and surest way to destroy the rule of law, particularly the requirement (which Hayek sets out with admirable clarity in The Road to Serfdom) that laws be applied consistently.

We can’t let people off simply because they happen to break the law in ways we like. So Socrates drank the hemlock. Cicero waited patiently for his executioner. Thoreau and King went to jail.

  • Lindsey Dodge

    Strongly agree and put very well. If policymakers want to have the discussion about changing the law, then that is one thing, but existing laws not being enforceable or being enforced selectively is quite another.

    • Anthony Gregory

      To say that people should go to jail for breaking bad laws is to abandon libertarianism altogether. People either have a right not to be incarcerated for victimless activity or they do not. The state saying something is law does not make it so.

      • Noah

        And you saying that something is not law does not make it so.

        Certainly, the state is much more capable of affecting their position than you are at yours. Might doesn’t make right, but it certainly makes what is.

        Yes, the status quo can be wrong, but this statement, lacking specific explanation and reasoning, is meaningless per se. The state has defined some activities as illegal and warranting incarceration, victimless or not, whether you personally agree with it or not. The stated contradiction does not make it less real.

        The statement of the obvious, that one does not approve of the criminalization of actions one feels are “victimless,” is facile. Why should anyone care?

        No one believes in victimless crimes; people generally believe in crimes with victims. However you might deny it, the construction of crimes in a social context requires victims–a clear cost that can be defined so that it can be limited.

        For instance, as much as you might deny it, drug laws exist because drugs have been constructed as having a victim–both the user and the society that must cope with a less productive and healthy individual.

        With Snowden, while you might feel that there were no victims, others might disagree, enough so that it becomes law in our republic. Snowden may have harmed the national security and therefore every citizen, making it far from victimless, in this view.

        Rather than stating the facile obvious about “victimless” crimes not being criminalized, why not draw out and argue for why Snowden’s actions were victimless, or, if they produced victims, why his action’s benefits warrant its costs? These points cannot be presumed.

        It is a reasonable presumption and concession to reality and others’ reasonableness that people, especially those engaged in this debate, don’t want to harm people who do not harm others, even if we disagree on how to achieve this. Presuming otherwise–that some people want to use the law to harm others who have not harmed anyone–demonstrates a dim view of opponents in an argument that only reflects the dimness of the speaker’s intellect and outlook on humanity, rather than the dimness of the opponent’s moral outlook.

        Presuming such about an opponent, while maintaining moral self-righteousness is beyond disingenuous; the staggering lack of self-awareness cripples one’s ability to effectively rebut the opponents’ claims because the opponent appears a savage brute intent on harming others arbitrarily, rather than a reasonable individual engaged in debate and subject to logic and reasonableness.

        Assuming that Snowden’s actions were victimless demonstrates a shocking under-appreciation for one’s own position, and positions beyond one’s own, that demonstrates the writer’s intellectual weakness. Don’t take your position or others’ for granted. Explain why Snowden’s action meet a definition of “victimless” (and defend the basis of that definition), or cease wasting time and space in self-righteously stating the obvious (as if one were alone in an ability to grasp elementary concepts).

  • Robert Kenneth Kirchoff

    I would find this more compelling if it weren’t possible, and indeed likely, that following one law puts one in direct opposition to another. To say we must all bow to the rule of law is a perfectly reasonable notion–a notion that girds liberal civilization.

    But in an age when laws are so manifold they are unknowable, interpreted so widely their text is meaningless, so arbitrarily enforced their standing varies unpredictably, taking your position to heart would mean surrendering entirely to the whims of the state. And the whims of the state are no more than the whims of men.

    One of the core purposes of law is to see principle held above the whims of rulers, to ground timeless morals and mores institutionally against usurpation. Rule of law holds those who craft law to the same law as those they would dictate to. But what use is codification when people in power can unilaterally interpret and enforce the law as they wish? When they can hold their enemies to account and let their friends go free for the same offense? The rule of law is hardly in force today.

    If Ed Snowden bows to the rule of law, he’ll be in a cell the rest of his life. And Clapper et al. will go on desecrating the constitution. That serves no one’s justice.

  • Erin

    I strongly disagree. If the claim made was that individuals were not above some standard of objective morality, I would concur, but the rule of law, as created and applied by the masses, is far from fair and consistent. Laws such as the ones Snowden broke, and the resulting penalties, are erected to protect the ruling class (and in this case, the law was created to protect said class from punitive actions for their own law breaking).

    I can’t think of a person who would argue that the people who assisted in transporting fugitive slaves during the 19th century should have been punished according to the rule of law (i.e. hanging). Those people were surely aware of the risk–making their actions that much more admirable–but that doesn’t make that potential eventuality ethically kosher. Likewise, the founding fathers ought to, by this logic, have submitted themselves to the king’s mercy for trial and hanging at the end of the American Revolution.

    Unjust laws justly ought to be broken. Sometimes doing so has major consequences. But what consistently applied principle would say that doing the ethically correct thing ought to come with punitive recourse, even if one’s actions didn’t violate any other ethical standard (e.g., to rescue a kidnapped child, I steal a car)? What value does the rule of law have if protecting it means condemning individuals to either unquestioned compliance to immoral decrees or punishment?

    • Nonie

      Erin, I couldn’t agree more. In this case, I believe it’s the government, not Snowden who deserves the punishment.

    • Noah

      Which laws that Snowden violated are categorically unjust? Which laws are normatively equivalent to the Fugitive Slave Act?

      I think exceptions for Snowden may exist, but these must be adjudicated to have any legal legitimacy to uphold rule of law. Snap judgments on Snowden based on ignoring or nullifying existing law is exactly the kind of behavior that undermines rule of law elsewhere, as Erin rightly decried, so we must be careful in calling for nullification.

      • Erin

        So, if I understand the main thrust of the argument (yours and the author’s), it’s that we have to have some normative standard of acceptable behavior and clear consequences for deviation from that behavior, otherwise, every ethical (or contractual) decision will lie in the hand of the individual making that decision, regardless of their level of rationality. So, given the ethical framework of someone from sub-Saharan, FGM is a virtue and any law prohibiting that ought to be broken.

        I can see that perspective, though I think this argument is skirting dangerously close to the edge of a slippery slope fallacy. Snowden ought to be help to an objective standard of ethics (I’m assuming I don’t need to debate the merits of nihilism right here). But the law isn’t objective, and it isn’t even because of corruption. It’s because humans, who are fundamentally flawed, are incapable of creating preemptive standards for every single possible action one might do, so a lot of our daily transpirings are subject to trial be rational peer evaluation.That’s why non-self-defense killing is wrong, but few people would deal out the same consequences to the man who beat his daughter’s rapist to death that they would someone who shot someone in a movie theater. Now, how do you write that into law?

        This is a complex debate, and I think if people read the article w/o considering the title, they’d come to the discussion with a lot more rational, productive incite. I’ve admire Helen’s writings in the past–her work is intelligent and thought provoking–and while I still disagree with the overall point I think she’s making here, I see more far value in what she wrote than in the cheap shots being taken at her and TOL as a whole for her piece.

        • Sean

          When I read the article + title, my main thought was:

          This article misses the character and opportunity of a three branch government.

          While British citizens may miss this entirely b/c they live with a Parliamentary system, Americans should not miss this.

          “Edward Snowden Should Go to Jail”

          I thought — the President should chase Snowden and the Congress should make this point moot by changing the law.

          This is how we, as Americans, can weave the complex and sometimes contradictory issues of Justice being an asymptote and laws never being quite right all the while having a system that slogs on in a functional, predictable manner. There is nothing wrong with Congress changing the law and making Snowden in the clear. This is a plausible solution fitting within the current system of government.

          “But the law isn’t objective, and it isn’t even because of corruption. It’s because humans, who are fundamentally flawed, are incapable of creating preemptive standards for every single possible action one might do, so a lot of our daily transpirings are subject to trial be rational peer evaluation.That’s why non-self-defense killing is wrong, but few people would deal out the same consequences to the man who beat his daughter’s rapist to death that they would someone who shot someone in a movie theater. Now, how do you write that into law?”

          I like this paragraph a lot. Writing exceptions / mitigating factors into law really isn’t that hard or bad. In the context of murder, many or most states have done it well (and I typed out several long paragraphs on it, but deleted them b/c it was too tangential). The essential point(s) I want to make is that the law will not ever be perfect, this is ok, and it is our job as citizens to keep trying to make it perfect.

  • Luke Wachob

    I understand how important equality under the law is to restraining government and preserving liberty (and therefore all the good things liberty makes possible), but I’m not sure that’s the same as saying “well, the law is the law” so all lawbreakers ought to be punished without discretion. That seems very authoritarian to me. I think moderation is a good thing, even in enforcement of the law, and as individuals I don’t think we’re morally obligated to suffer injustice at the hands of the state. I think Socrates was wrong in Crito.

    Let me ask, what’s the authors’ position on presidential pardons? Would you praise Obama for his record low pardons because to do otherwise would be selective enforcement of the law? I tend to think rectifying state injustices in specific circumstances, even where solving the larger societal problem can’t be done (i.e., letting someone off for a drug conviction rather than reforming the drug laws) is a capability that law ought to have, in limited capacity. How flexible that system should be is up for debate, but this post seems to take the hardline position against pardons, against excusing any offense against the law, against paper bags (http://www.youtube.com/watch?v=0YrWiwUM3FA)

    Plus, while in the libertarian community you may be speaking truth to consensus when calling for law enforcement re: Snowden, but in the broader American society there is a much larger appetite to punish Snowden and other leakers than there is to prosecute government officials who break the same laws. I guess on a libertarian site it’s fine to call for punishing Snowden in the name of equality under the law, but anywhere else it would be much more appropriate to do so re: James Clapper. You buy into the government’s hypocrisy when you pay more attention to Snowden than to the same offenses being committed by government officials or other political elites.

  • Matt Chappel

    ” If we all took it upon ourselves to break the law whenever we felt like it because reasons, things would go to hell in a handbasket pretty quickly.”

    This fallacious argument reeks of:

    “If we didn’t have government, who would build the roadz?”

    No…. We are OBLIGATED to disregard illegitimate laws. This concept is a foundational tenet of liberty.

    If you can’t understand that, you really don’t have any useful “thoughts on liberty”.

    • Robert Kenneth Kirchoff

      Be civil, please. Ms. Dale is an excellent thinker and has written eloquently for this blog. Her disagreement with you–and me, for that matter–is not some grave moral failing or proof of willful ignorance. It’s a difference of opinion. Treat it as such and be civil.

      • John Brown

        There comes a point when advocating for throwing someone in a Federal cage to have God knows what happen to him becomes more than just a difference of opinion.

        Apart from Snowden specifically, Ms. Dale would have you believe that people who assisted and hid Jews in occupied France should have gone to jail, because…nobody is above the law.

        When people advocate for state sanctioned violence to punish someone who has done nothing immoral, they should either reconsider those views or admit that they are not “liberty minded.”

        • Sean

          Ms. Dale’s piece alludes that it is concerning liberal democracies more than once. It is a bit unfair to use an example from one of the most extreme totalitarian sociopathic rage machines of a government from recent history.

          That said, your points about a federal cage amounting to something more than a difference of opinion are true. Prison is really scary.

          Ms. Dale did not really parcel out executive vs legislative action in this piece — I am curious about your views since you seem to disagree with her. The executive’s job is to enforce law, not create it (disregard negotiations with Congress over a veto). In my comment below, I mention straight away that the President should be pursuing Snowden. This does not restrain the legislature from shielding Snowden. This would be the beauty of U.S. checks and balances in my view. Thoughts?

          • John Brown

            “It is a bit unfair to use an example from one of the most extreme
            totalitarian sociopathic rage machines of a government from recent
            history.”

            It’s not unfair at all. That is the only possible logical conclusion to which her argument can lead.

            But, even if you’re squeamish with that example, we can plant ourselves right back here in modern-day America.

            If you were to follow this line of thinking, all prostitutes, drug users, and polygamists belong in jail. It’s not up to prostitutes, drug users or polygamists to decide if they are above the law or not.

            A person is above the law if the law is immoral. Nothing people like Ms. Dale says will ever change that fact. And, anybody who advocates otherwise is not a person who believes in freedom or liberty.

          • Erin

            “A person is above the law if the law is immoral. ”

            Thank you!

          • Sean

            1 — You did not share any thoughts about parceling out the acts and authority of the executive vs legislative branches of US government. Your comment still treats “the government” as one, coherent body. I would still be interested in your thoughts about the parceled nature of U.S. government as it relates here.

            2 — Wow.

            Please do not selectively quote me in such a manner — completely taking out the substance of my point in order to make a narrow reality appear brutal. In doing so, you are suggesting that the current political situation in the United States makes an easy comparison to Hitler’s Germany. That is a ghastly misconstrual of reality. The U.S. is not perfect, but it is not anything like Nazi Germany. Good God, man.

            That aside…

            3 — Your point regarding who gets to decide if they are above the law is worth hashing out. The answer is that no one gets to decide that objectively (because morality is not an objective science in the real world) and that everyone gets to decide that subjectively (because it is every citizen’s privilege and duty).

            The deeper question is about what to do when a citizen discovers or is met with an unjust law? Does one simply ignore it? Does one leave the country? Or does one engage in governance, because every citizen in this country (with a few exceptions like felons and children) has that lawful opportunity. This is why comparisons to Nazi Germany are absurd and irrelevant. Citizens in Nazi Germany did not have the right to participate in governance, citizens in the U.S. do.

            What’s the bigger problem here? That more U.S. citizens do not take the time to engage in governance. This frustrates me to no end. But it is a reality of our People, not a failure of government structure.

            All this talk about “a person is above the law (and should break it) if the law is immoral” and that Ms. Dale is wrong to suggest that Mr. Snowden take the rap ignores fundamental parts of our society’s structure. No one guaranteed that our laws would be perfectly in tune with Justice (it took me three times to not full-caps that sentence). What the U.S. system allows (not fully sure how the British do it) is the fine tuning and the changing of laws to get it better and better and better.

            Laws coming closer to Justice is like an asymptote. They will never touch. But, as our history has shown, we are getting closer and closer and closer. It is fantastic, it is hard work, and We the People should continue pursuing Justice-oriented Laws as a goal.

            Ms. Dale’s hesitancy to allow someone to individually determine that the law does not apply to him or herself makes a lot of sense — it is completely undemocratic.

            Ms. Dale’s desire to see Mr. Snowden take the rap makes sense — it is completely democratic.

            Those are not the only things going on here nor are they the only potentials. At any point, Congress can make this point moot by changing the Laws to become more like Justice.

            As for comparisons between Mr. Snowden and civil rights leaders, they are mediocre. The reality of the civil rights movement had civil disobedience completely combined with attempts to change the Law to better reflect Justice. People were beaten, jailed, and killed – that was wrong. Wrong at the time, wrong now. The difference between MLK and Mr. Snowden is that one regularly appealed to Congress and the other is hiding in another country.

            A sad reality for all of us to face is that if Mr. Snowden wanted to lead a march on Washington, he probably would not have the same reception as the civil rights leaders of yesteryear. I would be there to support Mr. Snowden and Justice, but I would be shocked (and joyful!) to see millions flock.

          • Matt Chappel

            “This is why comparisons to Nazi Germany are absurd and irrelevant. Citizens in Nazi Germany did not have the right to participate in governance, citizens in the U.S. do.”

            What a ridiculous statement… Especially in regards to the Snowden situation:

            How the hell can we “participate” in governance when the most egregious things the federal government is doing are TOP SECRET?

            You tout the openness of U.S. government in comparison to Nazi Germany without recognizing that the only reason you know about these violations is because of Edward Snowden himself!

            We would have never been able to even have a dialogue about this if it weren’t for Snowden!

            We can’t use government to fix things if the government isn’t transparent… And if making the government more transparent requires breaking the law, then the law must be broken.

          • Sean

            “You tout the openness of U.S. government in comparison to Nazi Germany
            without recognizing that the only reason you know about these violations
            is because of Edward Snowden himself!”

            False.

            I knew about rampant EXECUTIVE branch government misuse of digital spying back in 2011 from the AT&T copy/paste lawsuit that came to light (basically, everything on an iPhone was copy+pasted to the exec. branch spy network). While Mr. Snowden shed additional light on the subject, he was not the first to do so nor is our national dialogue about the subject solely the result of his acts. I also assumed that the executive branch was doing so before that and contacted my legislative representatives to explain my concerns.

            “How the hell can we “participate” in governance…”

            You participate in government by picking up your telephone and calling the office of your Congressional Representative to tell them your thoughts on the subject. Then, after talking to other citizens, you make sure they call, too. If you are not doing this, your inflammatory statements are just a bunch of puff. If you are doing this, I empathize with any frustration you have regarding the slowness of our Congress to act and the apathy of our general populace.

            There is a lot more you can do to participate as well, but it takes a ton of hard work and the beauty & struggle of democracy is that there is no guarantee of success.

            “… when the most egregious things the federal government is doing are TOP SECRET?”

            This is legit. Transparency is key, as you say. This is one of the reasons I care for Mr. Snowden’s freedom, work to urge the legislative branch to do what it can to ensure Mr. Snowden’s freedom, and believe his illegal acts to be justified.

            I do not advocate for complete transparency and the FISA courts frustrate me to no end, but there is a better balance to be struck and I hope that you work toward that end within the framework of democracy.

            “In essence, it’s just like Nazi Germany (minus the death camps) because
            what we don’t know about, we (by default) do not have a ‘right’ to fix!”

            There’s a lot in here. First off, the comparison to Nazi Germany is still way off base. The executive branch is not sending storm troopers into Congress to prevent them from acting. Congress retains the power to make this issue moot ANY DAY IT DARN WELL PLEASES. If this were Nazi Germany, the Chief Executive would send soldiers into the Congress to assert power. Please stop with the incredibly irrelevant and inflammatory analogies. They have no place in honest dialogue.

            As for the “what we don’t know about” piece, you are still right about issues of transparency.

          • Matt Chappel

            I guess my point was, if we don’t know something is happening in government (top secret), then we don’t have a right to fix it.

            We can only fix what we know about.

            You seem to agree with this point.

          • Sean

            Totally. =)

        • Matt Chappel

          Nobody is above the law:

          Rosa Parks, Martin Luther King Jr., etc.

          They all deserved jail time, right Ms. Dale?

      • Matt Chappel

        Not really sure why this comment is directed at me. Sarcasm and civility are not mutually exclusive.

        And, I disagree… It IS a moral failing to place written law over ethical principles. That’s exactly what it is.

        Instead of obediently defending the writer, perhaps communicate a position of your own.

  • http://www.tiffanymadison.com/ Tiffany Madison

    I call nonsense on this entire argument. Snowden carefully selected information to specifically expose government corruption with meticulous attention to detail and the intention of not placing lives at risk. While Manning is indeed a whistleblower, he was sloppy, negligent and seemingly motivated by personal reasons. Snowden has been very open, clear and determined to express why he leaked the information that he did: to expose crimes of government against its own people, to change the entire debate about the national security state and attempt to bring egregious privacy abuses into the limelight.

    Exposing the American panopticon changed the world and so what true “crimes” did he commit? Breaking his contract with his employer? So let the agency sue him. Want to argue that he had other options? Good luck. William Binney followed the proper, lawful course and you’ve never heard of him. Stating that the “law is law” is what silences conscientious citizens and patriots that wish to expose lawless, abusive government to benefit the people. The law is not set in stone and laws are unjust, so while the rule of law is the cornerstone of civilized society (bare with me ancaps), when it is wrong, good people have a duty, a right, and a righteous obligation to break it. Punishing good behavior in violation of bad law? Backwards and barbaric.

  • t3hsauce

  • MoralityBeatsLaws

    What if the laws made consensual sex illegal? Should people still be jailed if they have sex? People shouldn’t go to jail for breaking bad laws. You state you are a lawyer, but you seem to have no grasp of morality.

  • PGTB

    “For pity is the virtue of the law,
    And none but tyrants use it cruelly.”

  • EH

    “If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law” – HD Thoreau

    I think human sacrifice was de facto legal once upon a time in Meso-America. Laws can suck. The law itself holds no moral weight. The legal status of something tells us nothing about its morality or immorality.

    • http://sexandthestate.com/ Cathy Reisenwitz

      Thank God I don’t have to comment. Thanks.

  • Sean

    I agree that no one is above the law but hope that Mr. Snowden does not spend a day in prison. This is not a paradox, please let me explain.

    The executive branch of the U.S. government should be pursuing Snowden because he broke the law. It is the executive’s job to bring lawbreakers to justice. The arguments about perfect application of laws are not really relevant to my point, and because we live in reality, I do not find those arguments particularly persuasive. I would appreciate a higher or more efficient tax rate to create a more efficient justice system (as opposed to 90+% plea bargaining and settlements).

    But, the executive branch of the U.S. government (the police and the jailers) are NOT the U.S. government (in whole). This is not a subtle point. This is also why my first statement is not a paradox.

    My hope is that the legislative branch reacts strongly in support of Mr. Snowden and, I believe (but could be wrong), the majority of the U.S. people. Mr. Snowden broke the law in an effort to serve Justice. If the Law is not Justice, then we have a problem. Thankfully, the legislative branch of the U.S. government has the authority to fix those problems.

    So, no one is above the law but I hope that the U.S. Congress re-writes laws to deny the current executive abuses of privacy and to retroactively remove Mr. Snowden’s guilt all in one swoop.

    Is this realistic? It’s a long shot, but crazier things have happened. Good piece, good comments + discussion.

  • Noah

    Great piece. Libertarianism relies on positivism as much as others. According to dominant strains of libertarian thought, contracts must be fulfilled, once agreed to, regardless of the terms. If all behavior became subject to some vaguely and subjectively defined personal concepts of “natural law” or some other superseding principle, then human agreements and contracts could not exist in their absolute form. People would not be free to contract because contracts would be virtually non-existent because the contracts would not be enforceable because they could be broken ad hoc and virtually arbitrarily with no expectation of legitimate consequences.

    Contracts deal with power, just as laws do. One is compelled to follow them by force of consequences. If one believes in strong contracts, then one must believe in the enforcement of their consequences for violation. It is more than likely that Snowden violated at least one of his contracts, either of employment or citizenship, in behaving as he has, so believing in some punishment is not extreme in the slightest, except perhaps in believing in the freedom and strength of an individual’s right to enter into binding agreements.

    If one defends Snowden, then one undermines a fundamental component of a freedom to contract. Pretending as if there’s a clear-cut moral high road is as absurd as it is fallacious.

    Perhaps Snowden shouldn’t face consequences. If so, then we do so on the basis of ignoring or nullifying in some way his contractual obligations forbidding his actions. We must be very careful if and when we choose to ignore or nullify something so specific as an individual’s contract to ensure that we behave systematically to uphold rule of law. Otherwise, we have turned from legalism to thuggery.

    This case is very complex and will write more laws than those on which it’s decision will be based; treating it otherwise as simple is absurd and fallacious. Let’s have some appreciation for the complexity and nuance required to address it appropriately.

    • John Brown

      In Noah’s world, if you sign a contract to beat a slave, you deserve to be in jail if you break the contract and don’t beat the slave.

      • Noah

        Are the two really morally equivalent? But yes, if one agreed to do something, then failed to do so, then one must abide by the consequences prescribed, otherwise one undermines the effect of the contract. If everyone did this, then contracts wouldn’t exist, therefore it is inappropriate for an individual to do so.

        The best argument for libertarians is not that the law is invalid and should be nullified, but rather, that a narrow exception exists or should be made for Snowden and other whistle-blowers like him in the future.

        I see your point, though, about the problems of strong contracts. This view would support prostitution and selling oneself into slavery (although the specific contract situation you imagined was beyond bizarre).

        I agree that this positivist view of contracts may be problematic. Luckily, I am not a libertarian, so it’s not my problem. I can easily find most of these views of contracts repugnant with no risk of inconsistency, unlike libertarians, because I am not bound by notions of “libertarianism.”

        However, as libertarians, y’all here must confront this problem of strong contracts, enforced duties, and moral action. It would seem that most would throw contracts under the bus for vague notions of morality. If libertarians got their way with the abolition of the state, how would society or an economy function without absolute contracts, as well?

        I believe there are normative limits to contracts, but I also believe in the legitimacy of legal limits of contracts because I am not a rabid anti-statist. For instance, I see no problem with the state restricting rights to contracts by forbidding people from selling themselves into slavery. I think it’s reasonable because I don’t see that as infringing on people’s rights that much, especially because it would infringe only on a freedom to be unfree, which the state does not have a compelling interest to protect.

        So, go ahead and pretend I’m justifying slavery and abuse, if that’s convenient, but realize that, in doing so, one only identifies members of one’s own group as such. I am proudly no member of that group.

        • John Brown

          If the only way to ensure that a slave didn’t get whipped was for me to enter into a contract and then break it, I would have morality on my side.

          And I dare anyone to attempt to punish or chastise me for doing it.

          Any contract which stipulates that you must be an aggressor against an unwilling party is an invalid contract.

          • Noah

            Thanks for clarifying your perspective. Response: Is/ought.

            Separately, given that aggression in NAP is in the eyes of the beholder, just about any contract could be construed as requiring aggression against someone who would deem it such. A loss prevention officer at a store must confront a thief. To the thief, they might be justified because they needed the goods, to eat, for instance, so, to the thief, the loss prevention officer appears to aggress in fulfilling contractual obligations to the employer in preventing the theft by restraining the thief. Should the loss prevention officer not fulfill his obligations because the thief feels they are immoral?

            With NAP as a matter of subjective perspective, most contracts risk being invalid from someone’s perspective, so again, who confers legitimacy? Snowden felt his contract was valid when he signed it and for years after, as he received payment for fulfilling its terms, until he decided to stop doing so (because of a supposed moral shift?). The argument that he should be forgiven because he acted in accordance with a (shifting and subjective) morality is absurd and contrary to justice and rule of law.

            Further, if the contract were invalid because Snowden’s employer wanted him to aggress to benefit the employer, then Snowden should not benefit from the contract, as well. If Snowden benefited from a contract that he did not fulfill by releasing classified documents, then he received payment for services not rendered. By another name, that behavior is theft. If Snowden does not return all money paid to him under the terms of the contract he deemed invalid and violated, then Snowden keeps another’s property without providing agreed upon services in return. In short, he has committed theft.

            Again, this another angle to show that Snowden is not blameless, despite justification. For this reason, I advocate for exceptions to be made for him, rather than laws nullified or disregarded, as others have suggested. Again, complexity and nuance reign here, despite simplistic attempts to the contrary.

          • Eric

            So if natural law is arbitrary and subjectively defined how can you be sure that the written law is not also subjective? You need no further proof of this than that many don’t believe that what snowden did was either treason nor espionage, the charges that the government has or will levy against him. The question is treason to who? It certainly wasn’t the people, nor against the constitution. So he committed treason against a government? One that controls the courts and in “national security” matters can exercise and inordinate amount of control over the trial process thus rigging the game to its subjective viewpoint. So as you’ve astutely pointed out that the NAP and natural law are subjective to the eye of the beholder, what you argue for is no different except that you give license to any atrocity committed by the government and for the government. The author also while not necessarily advocating for this view realizes the implications with her anologies to Socrates and Cicero. It is entirely possible that Snowden could be put to death for what he did under the government’s subjective assessment that he committed treason. This undermines the last check we have on the abuse of power in an increasingly secretive and abusive government because far fewer are likely to come forward in the future as evidenced by what internal government sources did after the Bradley Manning trial, that is shut up and not contact reporters. Your ideas sound fantastically consistent but they are not in reality because you have some perverse view of written law being somehow objective. Further on the last point is that you talk about contracts but Snowden may have broken a contract with his firm, but the crimes he’d be charged with he never signed a contract for. The social contract is a logical absurdity, talk about subjective arbitrary and coercive.

          • Noah

            Well done.

            I wouldn’t argue that law is objective per se. I would argue that, in the American context, it represents the subjective views of a public from which its legitimacy is derived, such that the policies constructed by the people’s representatives exist, vis a vis the state, as though they were objective.

            Law does not say what is right objectively; it defines what the law will treat as though it were objectively right. This isn’t the best or the ideal situation, but it’s the one we have and it may be the best of limited options, if some democratic input is to be admitted into the legislative process, without crippling the entire mechanism.

            I’m not a conservative, nor a positivist. I don’t seek to justify what is because it is. I recognize the fallibility of the status quo, thus I see paths for the creation of broader whistle-blower loopholes in particular laws.

            However, I can appreciate that others–especially libertarians–are conservatives or positivists. I also recognize the implications of these positions on this issue. If one is a positivist or conservative, one must justify why these traits are not applicable here (but applicable elsewhere), or how and why an exception should be constructed for Snowden (and not necessarily others).

            Thus far, I haven’t been satisfied by libertarian responses to this issue. Even as libertarians might justify and applaud Snowden for breaking his contract, they insist others be held to their own contracts to their own detriment. Libertarians haven’t traced out thoughtfully enough the implications of Snowden being allowed to receive payment for a contract that he didn’t fulfill, or be relieved of his contractual duties, while others must fulfill their similarly degrading and problematic terms.

            This issue highlights a fundamental conflict between our views that nullification of law is acceptable. There may be normative limits of duty, but we may disagree on them.

            More fundamentally, though, this equivocation on positivism and nullification presents a challenge to the theoretical coherence of libertarian proposals that undermines a libertarian proposal’s credibility. Post-facto nullification from individual interpretations of archaic principles seems a sloppy fashion to construct a future stateless society premised on (not-so-) binding agreements between individuals. If libertarians wish to be taken seriously as theorists, whose proposals merit consideration, the proposals must present greater internal coherence than this.

            Rather than coming back at me with some attempt at deconstruction of my argument or the status quo, it would be more constructive for libertarians to consider their alternative and its merits. What are the limits of nullification and a freedom to contract? What is a consistent, agreeable definition of “natural law” or other superseding principles to use between individuals? How should violations of these standards be treated?

          • Sean

            Noah, I am greatly enjoying your posts. I have been regularly trying to shed some light on:

            –Parceling executive vs legislative branch actions in US government.

            –The power of the legislative branch to make all of this moot any day it wants by changing the law.

            and

            –The access that every one of us (citizens) has to participate in the legislative body.

            Your comments on contract law/theory were very eye opening. I had not thought of that avenue yet, and it is a gaping hole in some of the stances I see libertarians taking here.

      • http://thoughtsonliberty.com/ Rachel Burger

        I’m pretty sure you, categorically, cannot sign into a contract with a slave.

  • JoeCushing

    A law that is unjust is no law. He didn’t break the edict of the state as an act of civil disobedience to draw attention to the edict. He did so to warn people of tyranny. I guess Schindler belonged in jail too.

  • http://socioproctology.blogspot.co.uk/ windwheel

    ‘the UK has no history of entrenched rights, and a much weaker tradition of individuals elevating their consciences above the law, an individual who breaks the law over here is expected to make like Martin Luther King and face trial (even if he or she pleads not guilty).’

    Two points

    1) The tradition of trial by Jury meant that standing trial and being acquitted had a similar, or indeed much larger, instrumental effect to a Legal challenge to the Constitutionality of a piece of Legislation. Anything less would in ordinary parlance be described as a return to the bad old days of Judge Jeffreys and the Star Chamber.

    In other words, it isn’t really the case that-
    ‘England was the opposite of America.Here, though Pym and Hampden were still celebrated as heroes, it was the turn-coat,Stafford- equally a martyr but a martyr to the facile, meretricious, truths of Francis Bacon- that self-styled ‘coward conquest of a wretch’s knife’- rather than Sir Edward Coke, author of the magisterial Institutes that were also America’s mother wit’s grinding stone- whose path the Polity ultimately took.’

    2) Unlike America, Britain has always accepted ‘Hirschman exit’ as terminating the Crown’s claim on loyalty. Leo Amery’s son would have escaped the hangman’s noose if he had shown that he’d been naturalized as a Spaniard.
    Indeed, even in the case of agents of the British Crown who crossed over to the other side- e.g. Philby pere et fils- both moral indignation and the State’s zeal to prosecute was muted by something very British- the right we all recognize to quit being British.

    I will not add that, so long as our Jails aren’t handed over to Private for-profit Corporations, and so long as our native Criminal Class maintain their essential decency and sense of humor- a British Jail will always be an honorable ‘Cave of Adullam’ for the votaries of Liberty.

  • Ron

    Those who draw parallels to Martin Luther King Jr. and Edward Snowden usually do so to cite the importance of maintaining rule of law. What they “surprisingly” forget is that MLK was assassinated. If the point of this article was to help restore my faith in justice and humanity then that’s the last place I’d draw attention to.

  • BPH

    My objections to Mr. Snowden
    are not rooted in law, but in his stated justification. He believes:

    A. That the islamist adversary that is the primary target of NSA data
    gathering is, “a few disorganized” men in the middle east. That shows a
    serious lack of knowledge of both basic facts (1. It is a
    multi-generational rabidly reactionary, violent doctrine that allied
    itself with the Nazis in WWII. Al Banna kept a presence in Berlin
    through the end of WWII. 2. Technology is tipping the balance in favor
    of asymmetric fighters. 3… other.)

    B. That the implementation of turnkey tyranny depends on such data
    gathering. This is just wrong. The apparatus and knowledge of
    intelligence gathering and targeting of groups and individuals has
    existed for hundreds of years in modern form. To implement
    totalitarianism requires a lot of coordinated effort. The
    instrumentality of the state has been able to conduct assassinations,
    round up individuals, oppress groups, for a long, long time. We have
    more than enough information to implement such now, and have for
    centuries. Sophisticated metadata techniques have been around for
    decades. viz. http://kieranhealy.org/blog/archives/2013/06/09/using-metadata-to-find-paul-revere/

    To stand up as an argument, we need to compare the NSA with other US government operations arms which have been used by other nations to implement tyranny (i.e. dictatorship). There is quite a list! And if you think about it – there is nothing that the NSA could do by itself. To implement tyranny using the NSA’s PRISM system would require the participation of virtually every other agency of government.

    - The Armed forces of the USA. They could be ordered to attack our own nation.

    - The National Guard. Governors and the president could order them to
    occupy every state’s legislature and replace it with a dictatorship.

    - The FBI. The FBI could be ordered to target citizens and incarcerate
    them using sting operations for political purposes. It could be ordered
    to spy on citizens for political purposes. This has happened. (What was the outcome?)

    - The DOJ. The DOJ could be ordered to not investigate or prosecute. It could be ordered to dummy up prosecutions of innocent people for political purposes.

    - The IRS. The IRS could be ordered to target members of an opposition party.

    Pretty much all of government must get involved to implement turnkey tyranny. All of those agencies mentioned operate without much transparency, although
    more transparency than the NSA. We don’t know what they are doing most
    of the time. All of those agencies have been used tyrannically, in the USA, to one degree or another, for periods of time.

    Native Americans were attacked, driven off land, and put in reservations. Japanese Americans were put in internment camps in WWII. The IRS targeted people for political reasons under Nixon. (After reviewing it, I do not agree that the recent IRS contretemps over tax-free status was politically targeted.)

    While all this can and has happened in the USA, it did not last forever, and it it has never targeted everyone. There has never been a time when anything resembling a dictatorship has come to pass in the USA. Nor has there ever been a time when any nation descended from the English system of law and governance has become a dictatorship.

    So what makes the NSA special? The claim is, “lack of oversight”. Not really. There is the FISA court. There is the intelligence committee in congress. There is the executive branch, run by an elected official we call the president. I’m not a fan of this president in most ways. And maybe he has been overdoing it.

    But who was the last president (also a democrat) who seriously overdid it with the a clandestine agency? That was John Fitzgerald Kennedy. After he was shot, Lyndon Johnson famously said, “We’ve been running a goddam Murder, Inc. in the Caribbean.” The CIA of the period conducted assassinations at the president’s command. That led to Gerald Ford’s executive order (EO) 11905, Jimmy Carter’s EO 12036, and Reagan’s EO 12333 – all banning assassination, or cooperation with assassination by the CIA. So even if all the controls fail, other presidents step in to stop abuses.

    Are abuses possible with this NSA information archive?

    Yes. No question.

    Will those abuses go unnoticed? (I’m talking real abuses here, not imaginary abuses conceived by libertarians as inherent in the existence of such information.)

    Not a chance. This is inherent in the commission of abuses. When an abuse occurs, something happens. It happens to someone or some group of people. Trust me – if it happens to you – you will notice.
    Ask the Japanese put in the camps in WWII. Ask voters disenfranchised by Jim Crow. (Alright – I’ll grant that if you get killed, you are past noticing. But other people will. Ask the families of deseparicidos in Chile. And what happened in the end to Pinochet?)

    Will abuses go unopposed?

    If you think that, I want some of what you’re smoking. This whole Edward Snowden business is happening because he got the idea that it might, maybe,
    someday lead to abuse.

    In nations where dicatorship/tyranny happened, did abuses go unopposed?

    Not in your wildest dreams. Dictatorships are opposed – always.
    Not in Argentina. Not in Cambodia. Not in the USSR (far too much to go into here, but abuses were opposed even by the KGB itself.) Not in China. Iraq’s dictatorship was on its way down, and would have fallen after Saddam died, if not before.

    So the more I think this through, the more bogus I think Edward Snowden’s justification for stealing secrets and releasing them is. How do you get around the necessity that all branches of government go along with implementing tyranny? You can’t.

    Snowden didn’t steal those secrets because of anything that actually happened.
    He did it because of his fear that something terrible could happen – someday – maybe – in the future. That there is no evidence that suggests his worry is realistic didn’t matter to Edward Snowden. He was and is so wrapped up in his fantasy that in his mind it’s as real as the air he breathes.

    Looked at objectively, Edward Snowden’s worry is no more realistic than a myriad fact-free conspiracy theories that abound across the internet. From claims that 9-11 was a US government operation, to fact-free anti-vaccination activists, there is a wacko theory out there for you to believe in.

    But really. There should be facts to back it up. There is no evidence that the NSA’s archive could or would result in the USA becoming a dictatorship. None. There is only fantasy. If you try to work it out logistically, it’s not plausible.

  • Lizzie Q.

    Wow! This is called Thoughts on Liberty? It should be called State Worship. The day that those who claim to support liberty advocate sending people to jail for breaking the law in order to reveal massive crimes against the people is the day liberty has come to mean nothing. This is really awful. The rule of law has already ceased to apply in the U.S. So you are asking Edward Snowden to obey the very laws that the State has already ground into dust? Just disgusting.

  • Eric Owens

    I’m confused. Exactly what is being declared as the “law” in Rule of Law? We have a constitution that defines the laws and powers that the federal government MUST comply with or there is no such thing as Rule of Law in the United States. That same document provides for an amendment process and nowhere does that amendment process declare that SCOTUS is a substitute for said process.

    Yet, we have a two party system which has agreed to ignore the purpose of the US military in terms of a foreign policy which contradicts said constitution, as well as the constitution in whole, merely because SCOTUS said it was OK. Imagine that: the federal powers that be, granting the federal powers that be more power via political affiliation! The entity which has put US military personnel in harm’s way is the very same duopoly which has ignored the constitution to set up this NSA program, not Mr Snowden. Further, spying by a government or it’s representatives is considered to be espionage, which is an act of war. If we are truly a nation that believes in the Rule of Law, then it should be noted that The Law, aka The Constitution for the United States, provides a crime of Treason when committing acts of war against the citizens of the United States.

    While it is fitting that government itself offers up THE epitomizing reason for the existence of the 2nd Amendment, it is more than sad to see the number of citizens who will go to great lengths to make excuses for ignoring the Rule of Law for the sake of expedience or just plain ignorance. It is ridiculous beyond belief to then turn around and use the lack of the Rule of Law to justify why Snowden should be held to that principle, particularly when there is no evidence Snowden’s actions have resulted in any such harms. All we do have is a secret document, presumably created by the very people ignoring the Rule of Law in the first place, claiming he has endangered our soldiers. But, again, if the constitution weren’t being ignored in the first place, there wouldn’t be any documents for Snowden to release, let alone US soldiers in harm’s way.

    What’s more, the TSA supposedly exists to protect us from acts of terrorism, yet their actions and policies are open to the public because that is what we want: protection from terrorists. But if the NSA’s program to collect metadata is so innocuous and intended to keep us safe from terrorists, like the TSA, why does the NSA program have to be made secret? Secrets are not kept for benign reasons. Mr Snowden reported a crime to the proper authorities: the citizens of the United States are the government. Those in Washington DC are merely a subset of the government for the purposes of representation–a failure in and of itself.

    While the federal government may have at one time protected our country from the tyranny of Japanese and German fascism and then from communism, the NSA and their puppet masters have allowed Al Queda to succeed in their destruction of the culture and beliefs of the United States. Well, except that people like Ed Snowden still exist, that is. So yes, no one is above the law, but it is not Snowden acting above the law. Not SCOTUS, not the US Congress, and least of all the office charged with enforcing our federal laws, POTUS, is above the law. Lets face it, we all know the federal government has long acted outside it’s Constitutional powers, but putting the ugly reality of the results of allowing that abuse of power for so long is distasteful to people who had faith in their protectors. Thank a patriot that it has finally come to light.

  • Mark Rothschild

    I am always amused when I read what UK writers consider libertarian
    oriented thought. It just reminds me of the home truth that libertarianism is
    as American as apple pie – what that means in practice is that you Brits may
    try as you might, but you will never be able to speak libertarian without an
    accent – nay without an annoying statist lisp.

    Perhaps there is hope for libertarianism in the UK. Would it
    be true, but I’m not holding my breath.

    We have a Constitution that recognizes our rights. Our Constitution is a contract. Now, Edward Snowden felt that the contract had been breached. The principle is very simple: the Constitution trumps the law.

    Your statement that “I’m not hugely happy with the idea of people breaking the law for reasons of principle” misses the point. Snowden did not elevate his principles above the law – He defended the Constitution which
    is superior to the law.

  • Sharon Presley

    On this day celebrating Martin Luther King, Jr., I most especially want to disagree. There are and have been too many laws on the books in too many countries that violate human rights. Erin has given some excellent examples of that. In my view, the government is the one that has violated the law (of the Constitution), not Snowden. What about the people in the White Rose who stood up to the laws of the Nazis? What about Gandhi? Principled resistance to unjust laws or government actions should not be punished but applauded. This ahistorical argument will not lead to justice.

  • John

    Yeah, okay, how many people are volutarily willing to take life in jail or the death penalty? NOT MANY. Most people would prefer to live.

    The government has no authority at all to keep this level of secrets from the public and certainly has no power to treat people as traitors for revealing illegal and immoral operations by the government. If anyone needs to go to jail, it’s pretty much the entirety of Congress. When they go to jail, then you can lament about Snowden being a coward.

  • John

    Though, one wouldn’t expect women, let alone lawyers, to understand the concept of liberty fully. They believe men are to be controlled and domesticated for their purposes. And then there’s that English bit. As if the British understand liberty. They live to subserve or be subserved.