Eddie Keogh/Reuters

In a New Republic article on NSA surveillance, Yishai Schwartz defends the U.S. government against the critiques of whistleblower Edward Snowden and his supporters. This defense warrants close scrutiny, because several of the arguments offered echo misinformation spread by national-security state officials.  

The article begins by analyzing scenes in the Laura Poitras documentary Citizenfour where Snowden is holed up in a Hong Kong hotel, anxious that authorities might burst through the door and arrest him at any moment. "The implication is that Snowden has been targeted and persecuted by the government because he is a dissenter," Schwartz writes. "This is false. Snowden is a dissenter, but he is also a law-breaker. And the latter is the reason he has been targeted .... The government seeks to punish Snowden in order to make an example, but it is an example to future law-breakers (and in particular, those who expose classified information), not to deter future dissenters. Snowden happens to fit into both categories, but most dissenters do not, and they have nothing to fear."

Tell that to NSA whistleblower William Binney. In 2007, a dozen FBI agents stormed into his house with weapons drawn. "One of them ran upstairs and entered the bathroom where Mr. Binney was toweling off after a shower, pointing a gun at him," The New York Times reported. "Agents carried away a computer, disks and personal and business records .... Mr. Binney spent more than $7,000 on legal fees. But far more devastating, he said, was the N.S.A.’s decision to strip his security clearance ... costing him an annual income of $300,000."

Or consider Thomas Drake, who was careful to avoid revealing classified information in correspondence with a reporter about NSA waste, fraud, and abuse. Jane Mayer documents the trumped-up charges used to persecute him and destroy his career. Or ponder Jesselyn Radack's story.

Is Schwartz unaware of these people? Surely he is at least familiar with Poitras, whose film he is reviewing. She committed no crimes when making documentaries about Iraq and Gitmo, yet wound up on a secret government watch list, subjecting her to harassment, interrogations, and equipment seizures. The claim that lawful dissenters "have nothing to fear" is demonstrably false.

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A bit later in Schwartz's article, he objects to the argument that "our surveillance programs are unnecessary, that increases in government capabilities inherently infringe on our liberty, and warns ominously that dictatorships begin their oppression with the collection of data," countering that "surveillance is essential to countering threats from both terrorists and state espionage in the world today."

This generalized endorsement of surveillance is incoherent and useless. Nearly everyone agrees that counterterrorism and defense policy ought to involve some surveillance. Snowden himself is a proponent of many types of lawful, targeted surveillance. Is the phone dragnet that logs metadata of all calls made in the United States "essential to countering threats"? The panel of independent experts convened by President Obama doesn't think so. Is mass surveillance of all cell-phone calls in the Bahamas "essential"? NSA critics have made specific arguments against particular spying programs. Disputing those arguments requires defending specific programs, not "surveillance" generally.

Schwartz next turns to whether we ought to worry about the NSA's powerful surveillance capabilities. "I am confident that the government officials could break into my house, and I am equally confident that they won’t," he writes. "That is because there are laws, and effective oversight that forces officials to comply with those laws. A similar logic applies to the abuse of my data."

The analogy is deeply flawed. The legal and practical protections that prevent government agents from breaking into one's house are far stronger than the data protections the NSA has subverted for years in secret courts. When the press exposed an illegal program of warrantless wiretapping, the result was retroactive immunity for the lawbreakers. How can that go unmentioned in an assessment of official compliance with the law?

And Schwartz's confidence that the government won't wrongfully break into houses is itself suspect. As Radley Balko and Joel Berger put it in a 2006 article in The Wall Street Journal: "Hundreds of innocent families and civilians have been wrongly subjected to violent, forced-entry raids .... Home invasions can also provoke deadly violence because forced-entry raids offer very little margin for error. Since SWAT teams began proliferating in the late 1980s, at least 40 innocent people have been killed in botched raids."