Edward Snowden has a problem: The revelations for which he abandoned his country, his girlfriend, and his career have — so far, at least — failed to inspire meaningful congressional or White House efforts to rein in the National Security Agency.
Since stepping into the public light, Snowden has talked a lot about democracy, and on Thursday he emerged once more for an online Q&A to talk politics, surveillance, and, yes, democracy. Snowden has made a point of rarely granting interviews, but Thursday’s appearance was the second time the self-proclaimed whistleblower has submitted himself to questioning just this week. In an interview with the New Yorker published Tuesday, he emerged from hiding — digitally, anyway — to deny charges leveled at him by the powerful chairman of the House Intelligence Committee, Michigan Republican Mike Rogers, that he has been in bed with the Russian security services. On Thursday, he told his online audience that he may be willing to return to the United States if Congress enacts significant whistleblower reform, that "not all spying is bad," and that the most controversial intelligence practices that he has unveiled had actually been somewhat worthless as counter-terrorism tools.
By Snowden’s standards, the two interviews constitute something of a PR blitz, and while it’s impossible to know his true motivations for doing so, it appears quite clear that he has come to realize the NSA is winning the battle to retain its powers with the only constituency that really matters: President Barack Obama. In a Jan. 17 speech, Obama unveiled a series of proposed reforms to the intelligence community that amounted to little more than cosmetic changes geared toward addressing public outrage at the Snowden revelations. Meanwhile, rival bills to put new restrictions on the NSA are currently making their way through Congress, but it’s not clear if either will pass.
Both the White House and Congress have clear motivation for their go slow approach. Neither would want to be blamed for scaling back intelligence programs if another major terror attack were to occur on American soil. That’s the flip side of democratic politics in the post-9/11 era: Fear of terrorism makes it extremely difficult for elected officials to say no to the demands of America’s spies.
On Thursday, the first question Snowden agreed to answer was whether "it is possible for our democracy to recover from the damage NSA spying has done to our liberties." Yes, he said: "We can correct the laws, restrain the overreach of agencies, and hold the senior officials responsible for abusive programs to account." Sure, it’s a possibility, but will any of those things happen? So far, the answer seems to be no. Obama declined to endorse the more aggressive recommendations of the advisory panel he appointed to review intelligence gathering. And despite the fact that Snowden documents show that James Clapper, the director of national intelligence, quite clearly lied to Congress when he said the NSA doesn’t collect data belonging to Americans, he hasn’t been fired or otherwise disciplined.
It’s not all gloom and doom for Snowden, especially on the legal front. Late last year, federal District Judge Richard Leon ruled that the NSA’s bulk collection of Americans’ phone record was in all likelihood unconstitutional. A later ruling by District Judge William Pauley went in the opposite direction and concluded that the NSA’s methods were a legitimate intelligence tool.
Those rulings may have set the stage for a showdown at the Supreme Court, where it is unclear how the justices will rule. One prominent national security lawyer, Benjamin Wittes of the Brookings Institution, is highly skeptical that the justices will be willing to end a program that the White House has loudly and repeatedly described as essential to national security. As a result, Wittes doubts that the justices will be willing to end the program and potentially bear a degree of alleged responsibility the next time a major terrorist attack occurs in the United States. "When everything’s said and done, I can’t count five votes on the Supreme Court to bear that kind of responsibility for the next bad thing that might happen," Wittes wrote in December.
Still, with Section 215 of the Patriot Act — the provision used to authorize bulk collection of telephone records — set to expire on June 1, 2015, other legal observers doubt that the Supreme Court will even take up the issue. Given that uncertainty, the judiciary is the wildcard in the NSA reform effort. Will they or won’t they strike down bulk collection? No one really knows — and that isn’t particularly convenient for Snowden.
Snowden has had some success in changing the conversation about surveillance — according to the latest Pew poll, 40 percent of Americans approve of government collection of telephone and Internet data and 53 percent disapprove — but that sense of outrage has not been sufficient to spur official Washington into action.
And so Snowden has emerged to push intelligence reform. On Thursday, the New York Times reported that the Privacy and Civil Liberties Oversight Board, an independent federal privacy watchdog, concluded that the mass collection of phone records has "minimal" benefit in fighting terrorism, a conclusion which was echoed by Obama’s own review panel. Snowden latched on to the newly revealed finding to make the case for ending such bulk collection. "There is simply no justification for continuing an unconstitutional policy with a zero percent success rate," he argued.
At the same time, Snowden seems to have realized that he can’t engage in an endless public fight with the intelligence community and its many defenders. "Not all spying is bad," he said on Thursday — a comment that was his most conciliatory public remark to date about the NSA and the U.S. intelligence community.
The U.S. government, however, remains anything but conciliatory. While Snowden said Thursday that his return to the United States would be "the best resolution for the government, the public, and myself," law enforcement officials have shown very little interest in meeting any of Snowden’s conditions for returning home, including his demand for an open trial before a jury. On Thursday, Attorney General Eric Holder said that Snowden needed to be "held accountable for his actions," and while he said he would be willing to "engage in conversations" about a plea deal, he made clear that that was an unlikely outcome.
"People have really gotten hung up on the idea of whether he’s a whistleblower or something else," Holder said. "From my perspective, he’s a defendant. He’s a person that we lodged criminal charges against. I think that’s the most apt title."
Snowden may have escaped Holder’s clutches, but few other things have gone his way. Meaningful intelligence reform has stalled on Capitol Hill and the White House has proposed only minimal changes to the NSA programs Snowden has tried so hard to derail. His increasing public presence is a good barometer of where things stand: the more we hear from him, the worse things are going.