Edward Snowden, a former CIA technical assistant who has claimed responsibility for leaking information that reveals that the US intelligence community obtains and keeps information on American citizens accumulated off the Internet without ever issuing a search warrant or opening an investigation into that person. On June 14, 2013, the United States federal prosecutors charged Snowden alleging violations of 18 U.S.C. ¨ 641 (theft of government property), 18 U.S.C. ¨ 793(d) (unauthorized communication of national defence information), and 18 U.S.C. ¨ 798(a)(3) (wilful communication of classified communications intelligence information to an unauthorized person). Each crime carries a maximum sentence of 10 years in prison. Snowden fled the United States prior to the publication of his disclosures, first to Hong Kong and then on to Moscow, where he was granted political asylum within Russian borders by the government of Russia at the end of July 2013 and where he now resides at an undisclosed location. When asked about his motive behind becoming a whistle-blower, Snowden replied:
“When you’re in positions of privileged access like a systems administrator for the sort of intelligence community agencies, you’re exposed to a lot more information on a broader scale than the average employee and because of that you see things that may be disturbing but over the course of a normal person’s career you’d only see one or two of these instances. When you see everything you see them on a more frequent basis and you recognize that some of these things are actually abuses. And when you talk to people about them in a place like this where this is the normal state of business people tend not to take them very seriously and move on from them. But over time that awareness of wrongdoing sort of builds up and you feel compelled to talk about. And the more you talk about the more you’re ignored. The more you’re told it’s not a problem until eventually you realize that these things need to be determined by the public and not by somebody who was simply hired by the government.”
Clearly, Snowden had given up his well-paid employment of $200,000 per year and his privileged life because he had a moral obligation to allow the public aware of the abusive (immoral) activities of the government even if it meant to break the “law.” In order to determine whether Snowden is a hero who needs to be awarded or a criminal who needs to be punish, lets looks at the two most dominant legal philosophical prospective, Legal Positivism and Natural Law.
The famous Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart on morality and law, which demonstrated the divide between the positivist and the natural law philosophy. One of the issues at stake in the Hart-Fuller debate was how the post-Nazi West German legal system should respond to heinous acts committed during the Nazi period and purportedly authorized by Nazi law. Being a positivist, Hart argued that because these acts, however reprehensible, were lawful at the time they were committed. Any reasoning suggesting that Nazi laws were not valid laws because they were morally detestable would confuse what the law is with what the law ought to be. For Hart, law is the command of the sovereign backed by the threat of punishment. On the other hand, being a natural law theorist, Fuller maintains that law and morality cannot be divorced from each other and that the post-war courts were entitled to hold Nazi rules not to be law. To call the Nazi system legal and to call its rules laws was a false description of what they were. They were instruments of an arbitrary and tyrannical regime.
If this debate is to take place today, Hart would argue that Snowden’s justification in breaking the law based on morality is invalid. The law forbids acts of espionage and theft of government property; thus, the sovereign power (the US Government) has to grant Snowden punishment as stated by the law. Here the question of morality is irrelevant as morality is subjective and therefore is an obstacle in measuring law. On the other hand, Fuller would argue that Snowden is innocent because the law is immoral as it prohibits moral entrepreneurs, such as, Snowden, revealing the unjust practices of the government agencies to the public.
Ultimately, the question that we should be asking is: which approach to the law leads to greater benefits to the society? Do we as a society benefit from breaking laws that are unjust? After all, laws are made to allow society to flourish though order. Law is an expression of society; therefore, laws should reflect the values of the society. Morality is a set of inherent values of a society. Divorcing morality from law is an artificial concept that leaves a society in the wilderness as the society loses its direction. Whether a society is governed by a democratically elected government or a dictator, ultimately, a small number of people decide which rules should govern the rest of the society. History tells us that lawmakers, whether elected or unelected, often make laws that are detrimental to the wellbeing of the society. If we’re to accept such laws just because they’re laws, then the status quo, no matter how detrimental it is to the social wellbeing, will not be challenged and changed. It would leave the society stagnant and slow the process of progress. By breaking and challenging an unjust law, Snowden has taken the first step towards an amendment. For that reason alone, he’s a hero.
Furthermore, positivism inhibits justice. Imagine that Adolf Hitler (chancellor of Germany during the Second World War) was still alive and not found guilty for killing millions of innocent people simply because he was acting in accordance with the brutal and oppressive law. If this was true, how would the society consolidate the numerous victims of World War II? Rational thoughts dictate that oppressors should be punished not only to establish justice but also discourage any potential oppressors to commits such heinous crime in the future. Anyone disobeying an oppressive law of the Third Reich would generally be looked as a hero. In Snowden’s case, he disobeyed a law that is oppressive. Any law that allows the “Big Brother” to diminish civil liberty by unjustly spying on its population is not worthy to be considered a law. What Snowden did is comparable to a Nazi soldier refusing to carry out an order to shoot at innocent people. Therefore, Edward Snowden is a hero.
Sources:
Palvich, G. (2011). Law & Society Redefined . Toronto: Oxford University Press.
RT. (2013, October 1). New Snowden leak: NSA is monitoring the Internet histories of millions of Americans. Retrieved from RT News: http://rt.com/usa/nsa-leak-internet-history-549/
Yin, T. (2013, July 15). Is Edward Snowden Guilty of US Espionage Charges? Retrieved from Jurist: http://jurist.org/forum/2013/07/tung-yin-edward-snowden.php
Yost, P. (2013, June 22). NSA leaker Edward Snowden charged with espionage, theft of government property. Retrieved from National Post: http://news.nationalpost.com/2013/06/22/nsa-leaker-edward-snowden-charged-with-espionage-theft-of-government-property/
Law and Society@Kwantlen 
This is a fascinating post.
One technical point worth noting at the outset is that Snowden’s revelations have demonstrated that the US Intelligence Community (particularly the NSA) and its international partners (including Canada’s CSEC) have engaged in spying, not just on US citizens, but on citizens, institutions, and governments around the world.
A second point of a more substantive nature: You pose the question of whether Snowden is a hero or a criminal. To me, the either/or phrasing of this question implies that the two categories (hero, criminal) are mutually exclusive. Is this the case?
Regarding your application of the Hart-Fuller debate to this case:
First, you have offered an excellent overview of the issues at the centre of the original debate.
The key point to remember is that Hart and Fuller had conflicting positions on when and in what circumstances something should be considered to be valid law. You note that “Hart would argue that Snowden’s justification in breaking the law based on morality is invalid”. I am not sure that this is the case. I think that Hart would be more interested in noting that, regardless of the justification, it should be acknowledged that Snowden was indeed breaking the law. Remember, Hart is not an apologist for unjust laws – he simply insists that the lack of just (or moral) grounding does not, in and of itself, render law invalid.
Fuller may indeed regard the law as immoral (and therefore invalid), on the grounds that it is applied arbitrarily (government organizations ‘leak’ information to the media on a regular basis – when it suits their interests), or perhaps on the grounds that it forces employees to keep silent when they uncover immoral practices.
Your argument that positivism inhibits justice is compelling. You will definitely find common cause with the proponents of Critical Legal Studies.
For the sake of being a contrarian:
It is one thing to say that laws that operate against the interests of justice should be contested and struck down – including through justifiable civil disobedience.
It is another thing to say that laws that operate against the interests of justice should not be considered laws at all.
If we adopt the latter position, are we not pretending that law is something more than an instrument of power? It seems to me that most contemporary forms of injustice are operationalized through law. I wonder if it is not more worthwhile for us, as advocates for justice, to recognize the role of law as a mechanism for producing injustice. This strips law of some of its mystique, but it lets us move from the ‘is this law?’ question to questions like ‘in whose interests does this law operate’ or ‘how can a law so manifestly problematic be regarded as valid by legal institutions?’.