Congress and federal judges need to stop being timid about releasing information

December 8, 2013

Congress and federal judges are afraid of making even a tiny error by releasing one piece of information that is used against us. This created a vacuum on releasing information necessary for the public to decide its own destiny instead of having it decided in secret for (or against) it.

By being totally risk averse in disclosing, federal judges and Congress actually cause Snowden type eruptions. Snowden has released more in one eruption than all the federal judges and Congress would have if they had just treated their individual cases as normal without such deference to the NSA, DOJ, FBI, etc.

If federal judges and Congress stopped acting so afraid to disclose secrets or to limit pervasive violations of the Constitution, they would then head off the next generation of Snowdens.

Moreover, it is likely that the next Snowden will create an even greater document dump than is imagined by the manageroids who control NSA. Imagine a transparency cyber bomb or virus that exposed everything for public download.

This is like the excessive high prices for archived scientific articles created Aaron Swartz. The greed of the scientific publishers created a reaction. Moreover, the scientific publishers stole work created by professors paid for by governments or private donors. So it was a theft.

NSA also can be viewed as stealing data owned by others in violation of the Constitution or of the laws of the other countries targeted. Stolen information will not be respected by a would be Snowden as if it was truly the government’s own data in a moral sense.

Applying a moral sense is the role of federal judges and Congress. They abdicated this role by being afraid to be responsible to release anything. They refused to make a decision case by case. Their total abrogation of their own role to apply judgement to the facts of each case then resulted in a Reality Gap between what NSA told Congress and the public and the truth.

It is also likely that Russia and China knew the outlines of this gap already. Thus it was the public who was lied to. The reason for Russia and China not to have exposed this earlier is they want to do it to their own people. They form an axis of repression with the NSA. They share more in common with NSA to repress their own people than as engaged in conflict.

Snowden likely realized this. This is part of why he decided to simply take a massive load of documents. He needed enough to make an impact on a huge system that is indifferent to individuals or to the law. (This is accepting the dissident persona as governing Snowden’s motives.)

Assange and Snowden want to be role models to dissidents. They show a different direction for employees to expose wrong doing by organizations. The demand for this is created by federal judges and Congress being so risk averse to do their job that they in effect nullify their own oversight role.

Judges and Congress need to start ordering controlled document dumps in order to have a meaningful role. They have to fill the role of the Guardian and Glenn Greenwald. That requires large scale document exposure to the public, but in a controlled fashion.

Treading the middle ground is what Greenwald and the Guardian are trying to do now. This is what federal judges and Congress are supposed to do but have chosen not to do. Time for them to start imitating Greenwald and the Guardian by ordering NSA and DOJ to disclose documents but with prior review.

The judges and Congress should focus on releasing what is embarrassing to the powerful, wealthy and well connected. This should anger the powerful and make them afraid. That is what true oversight and true independent judging is about. This is why we have an elected Congress and independent judges.

Snowden has shown them they were shirking their role. So have Greenwald and the Guardian. So has Wikileaks. Time for the judges and Congress to start seeing themselves as a type of Wikileaks created in the original Constitution for that purpose. It was not an oversight, the independent judges and House elected every 2 years were put in there to be the Wikileaks. But they have become too risk averse and co-opted by NSA, DOJ.

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