Snowden deserves an immediate presidential pardon

2013年7月14日 星期日 15:17 PM

Snowden deserves an immediate presidential pardon 
奥巴马应赦免斯诺登

哈佛大学国际事务教授 史蒂芬•沃尔特 为英国《金融时报》撰稿

In his second inaugural address, President Barack Obama called upon “We, the People” to preserve America’s ideals of individual freedom and equality. When Edward Snowden disclosed the National Security Agency’s secret surveillance programmes, he was rising to this challenge. Like the nation’s “founding fathers”, he was also defying the usurpations of an increasingly intrusive government. Mr Obama should therefore call off the campaign to apprehend him and offer Mr Snowden a pardon instead. 在巴拉克•奥巴马(Barack Obama)总统第二次就职演说中，他号召“我们人民”要坚持美国的个人自由与平等理想。当爱德华•斯诺登(Edward Snowden)披露美国国家安全局(NSA)的秘密监控项目时，他就是在迎接这一挑战。正如这个国家的“国父们”一样，他也在反抗一个触手越来越长的政府的僭越行为。因此，奥巴马应撤销逮捕他的行动，赦免斯诺登。
Mr Snowden stands accused of stealing government property and unauthorised dissemination of classified information. But he did not pass valuable secrets to a foreign government or sell them for personal gain – as convicted spies such as Aldrich Ames or Jonathan Pollard did. On the contrary, he gave up a well-paid job and put his own freedom in jeopardy for a principle. 斯诺登受到的指控包括盗窃政府财产以及未经许可传播机密信息。但是，他并没有把宝贵机密拱手送给外国政府，也没有为谋私利而出售机密——这跟已经定罪的奥尔德里奇•埃姆斯(Aldrich Ames)或乔纳森•波拉德(Jonathan Pollard)等间谍是不一样的。相反，他出于原则，放弃了高薪职位，将个人自由置于危险之中。
Mr Snowden’s motives were laudable: he believed fellow citizens should know their government was conducting a secret surveillance programme enormous in scope, poorly supervised and possibly unconstitutional. He was right.  斯诺登的动机令人赞赏：他认为同胞们应该知道真相，他们的政府正在开展一个范围极广、缺乏监管并有可能违宪的秘密监控项目。他的看法没错。
Thanks to Mr Snowden, we now know that officials and private contractors have been collecting vast amounts of information about ordinary Americans and conducting unprecedented levels of spying on US allies. We know key officials lied on Capitol Hill about what the NSA was doing, casting doubt on the quality of Congressional oversight. By going public, Mr Snowden reminded us that secret programmes undertaken in the name of national security are extremely difficult to control. 正是由于斯诺登的行为，我们如今了解到，官方机构和私人承包商一直在收集大量有关普通美国人的信息，并且在对美国盟友开展史无前例的大规模间谍活动。我们由此得知，在国安局正在做什么的问题上，高官要员们在国会上说了谎，这不得不令人怀疑国会的监督效率。通过将真相大白于天下，斯诺登提醒我们，那些以国家安全名义开展的秘密项目是极难控制的。
NSA defenders argue that these programmes only target individuals who might pose a threat. They maintain ordinary citizens whose digital records might be incriminating or embarrassing need not be concerned, because government officials will never examine their data without probable cause and judicial approval. 国安局的辩护者们声称，这些项目只针对可能造成威胁的人。他们坚称，那些可能会因数字记录获罪或导致尴尬的普通公民不必担心，因为政府官员没有足够理由以及司法批准是不会检查与他们有关的数据的。
How naive. Under the veneer of “national security”, government officials can use these vast troves of data to go after anyone, questioning what they were doing, including whistleblowers, investigative journalists or ordinary citizens posting comments on news websites. 这么想实在是幼稚！在“国家安全”的幌子下，政府官员可以利用这些巨大的数据宝库追踪任何人，质疑他们在做什么。这些被调查的人可能包括告密者、新闻调查记者甚至是在新闻网站上发表评论的普通公民。
Once a secret surveillance system exists, it is only a matter of time before someone abuses it for selfish ends. Richard Nixon kept his own “enemies list” and used the Central Intelligence Agency to spy on American citizens. Former Federal Bureau of Investigation director J Edgar Hoover helped keep himself in office by collecting dirt on officials. 只要存在一个秘密监控系统，这个系统被某些人出于私利滥用就只是一个时间问题。理查德•尼克松(Richard Nixon)就有一张“敌人名单”，还曾动用美国中央情报局(CIA)监听美国公民。而前美国联邦调查局(FBI)局长约翰•埃德加•胡佛(J Edgar Hoover)则靠收集官员负面信息来保住自己的局长宝座。
Fear of exposure threatens to stifle the dissent and debate that is essential to healthy democracy. Governments already classify much of what officialdom is doing and selectively leak information to influence public opinion, so citizens must rely on journalists, academics and principled individuals such as Mr Snowden to find out what our “public servants” aren’t telling us. But if critical voices are cowed by the possibility that their personal lives will be revealed, those in power will be harder to monitor and policy errors will go uncorrected. 对暴露的恐惧有可能会导致压制良性民主体制十分必要的异见和辩论。政府对官僚机构的许多行为都做了保密，选择性地公开信息，以左右舆论。因此，普通市民只有依靠记者、学者以及斯诺登这样有原则的个人，才能知道我们的“公仆”有什么事瞒着我们。但如果那些批评声由于私人生活可能被公开而受到胁迫，对当权者进行监督将会加倍困难，政策错误将无法得到纠正。
Pardoning Mr Snowden would surely provoke howls of protest from the intelligence community, which hopes to deter future leakers by making an example of him. But a pardon for him is unlikely to trigger a wave of imitators; how many other insiders would sacrifice their jobs and risk their freedom because Mr Snowden got a reprieve? And if a few did follow suit and exposed government wrongdoing, society as a whole would benefit. 赦免斯诺登肯定会引发情报界的一片抗议之声，这些人希望通过对斯诺登的处理以儆效尤，以防未来再出现泄密者。但赦免斯诺登不太可能激发一批模仿者。有多少内部人士会因为斯诺登被赦免而愿意放弃他们的职位并冒失去自由的风险？就算少数人学斯诺登揭露政府的陋行，整个社会也会从中受益。
History will probably be kinder to Mr Snowden than to his pursuers, and his name may one day be linked to the other brave men and women – Daniel Ellsberg, Martin Luther King Jr, Mark Felt, Karen Silkwood and so on – whose acts of principled defiance are now widely admired. 斯诺登在史书上的待遇很可能会比抓他的人好一些。也许有一天，他的名字会与其他勇敢的男女——丹尼尔•埃尔斯伯格(Daniel Ellsberg)、马丁•路德•金(Martin Luther King Jr)、马克•费尔特(Mark Felt)、凯伦•丝克伍(Karen Silkwood)等等——并列，这些人有原则的反抗行为在今天广受人们敬佩。
Ironically, less august company awaits Mr Snowden should he join the ranks of those whom presidents have spared. Gerald Ford pardoned Richard Nixon, George HW Bush pardoned the officials who conducted the illegal Iran-Contra affair, and Mr Obama has already pardoned several convicted embezzlers and drug dealers. Surely Mr Snowden is as deserving of mercy as these miscreants. Pardoning him would also show that Mr Obama’s rhetorical commitment to “We, the People”, and to open and transparent government, is not just empty words. 讽刺的是，如果斯诺登被加入获得总统宽恕的人之列，他的“同伴”中却有很多不那么光彩。杰拉尔德•福特(Gerald Ford)赦免了理查德•尼克松，老布什(George H. W. Bush)赦免了那些导演了“伊朗门事件”的官员，而奥巴马已赦免了几个被定罪的贪污犯和毒贩。毫无疑问，斯诺登和这些恶人一样值得怜悯。赦免斯诺登还能够证明，奥巴马的口头承诺——向“我们人民”许下的承诺，致力于建设开放透明政府的承诺——并不是空话。
The writer is a professor of international affairs at Harvard

本文作者是哈佛大学(Harvard)国际事务教授

纽约时报：In Secret, Court Vastly Broadens Powers of N.S.A.

In Secret, Court Vastly Broadens Powers of N.S.A.

http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html 

WASHINGTON — In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,”William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Mr. Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns. In one recent case, for instance, intelligence officials were able to get access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.

In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications. In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.

The court’s use of that language has allowed intelligence officials to get wider access to data and communications that they believe may be linked to nuclear proliferation, the officials said. They added that other secret findings had eased access to data on espionage, cyberattacks and other possible threats connected to foreign intelligence.

“The definition of ‘foreign intelligence’ is very broad,” another former intelligence official said in an interview. “An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that.”

The official, like a half-dozen other current and former national security officials, discussed the court’s rulings and the general trends they have established on the condition of anonymity because they are classified. Judges on the FISA court refused to comment on the scope and volume of their decisions.

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

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Beyond broader legal rulings, the judges have had to resolve questions about newer types of technology, like video conferencing, and how and when the government can get access to them, the officials said.

The judges have also had to intervene repeatedly when private Internet and phone companies, which provide much of the data to the N.S.A., have raised concerns that the government is overreaching in its demands for records or when the government itself reports that it has inadvertently collected more data than was authorized, the officials said. In such cases, the court has repeatedly ordered the N.S.A. to destroy the Internet or phone data that was improperly collected, the officials said.

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.

The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.

Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process,” he said.

The FISA judges have bristled at criticism that they are a rubber stamp for the government, occasionally speaking out to say they apply rigor in their scrutiny of government requests. Most of the surveillance operations involve the N.S.A., an eavesdropping behemoth that has listening posts around the world. Its role in gathering intelligence within the United States has grown enormously since the Sept. 11 attacks.

Soon after, President George W. Bush, under a secret wiretapping program that circumvented the FISA court, authorized the N.S.A. to collect metadata and in some cases listen in on foreign calls to or from the United States. After a heated debate, the essential elements of the Bush program were put into law by Congress in 2007, but with greater involvement by the FISA court.

Even before the leaks by Mr. Snowden, members of Congress and civil liberties advocates had been pressing for declassifying and publicly releasing court decisions, perhaps in summary form.

Reggie B. Walton, the FISA court’s presiding judge, wrote in March that he recognized the “potential benefit of better informing the public” about the court’s decisions. But, he said, there are “serious obstacles” to doing so because of the potential for misunderstanding caused by omitting classified details.

Gen. Keith B. Alexander, the N.S.A. director, was noncommital when he was pressed at a Senate hearing in June to put out some version of the court’s decisions.

While he pledged to try to make more decisions public, he said, “I don’t want to jeopardize the security of Americans by making a mistake in saying, ‘Yes, we’re going to do all that.’ ”