Law professor Edwin Smith

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The foreign relations law expert weighs in on the fallout from the NSA leaks, Edward Snowden and U.S. surveillance.

An expert on international law, international relations theory and foreign relations law, Edwin Smith holds joint appointments as a professor of law and of international relations at the University of Southern California. He was previously a litigator with a private firm and staff attorney for the National Oceanic and Atmospheric Administration. He also served as special counsel for foreign policy to a U.S. senator and was appointed by President Clinton as a science and policy advisor to the U.S. Arms Control and Disarmament Agency. Smith received his J.D. from Harvard Law School and has lectured internationally on U.N.-NATO cooperation in peacekeeping.


Tavis: Edward Snowden is a hero to some and a traitor to others after leaking secret information about the extent of our government surveillance program here at home and around the world.

Snowden of course remains in Russia still, refusing to return to this country to stand trial. The intelligence data he revealed proved just how extensive the National Security Agency’s data collection was and continues to be, for that matter.

Here now to talk about the fallout, but not just the fallout, but where this story goes from here, Edwin Smith, law professor at USC School of Law, and an expert in international law. Professor Smith, good to have you on the program.

Professor Edwin Smith: Thank you. Thank you very much.

Tavis: As I said a moment ago, I want to take this story to where we think it might be headed, or – and there are any number of places it could be headed, or not, obviously.

Smith: Yes.

Tavis: Let me start by asking one, what you make of the statements from Attorney General Eric Holder that he would be open to a conversation with Edward Snowden. How do you read that?

Smith: Basically, I actually went back and looked at the initial case that was filed and the statutes under which it was filed, and basically this is the suggestion of the kind of negotiation that anybody gets involved in before a criminal charge and indictment is pursued.

Can he make an arrangement? Are there any discussions that he can have with Holder that could let Holder think differently about what he ought to be charged with, that he will be charged?

That there will be a criminal, a federal indictment, that is of no doubt. That it will be a full indictment is of no doubt. The question is what will the charge be.

Tavis: So I would assume that if what you just said, it would be perhaps in Edward Snowden’s best interest to engage in that conversation with the attorney general.

Smith: I would assume so, from a whole different perspective. I think if we’re going to treat Edward Snowden as someone who’s acting in the public interest, what he’s pursuing is a form of civil disobedience.

One of the things that Dr. King told us is that yes, if you break the law, sometimes you have to assume that you will pay the price for having broken the law.

If he’s serious about being a whistleblower, he ought not to expect to get off Scot-free for having blown the whistle. Whistleblowers must understand that there is a price to pay if they are serious about the public interest.

Tavis: Yeah. But the other part of that King quote, as you well know, that King took pride in breaking unjust laws, immoral laws –

Smith: Exactly.

Tavis: – unethical laws.

Smith: That’s right.

Tavis: Just because it is the law doesn’t mean it’s moral or ethical, which takes us now to the comment President Obama made recently in his conversation with David Remnick at “The New Yorker,” where he suggests that there was another way.

That Edward Snowden could have done this differently. Now the president, for obvious reasons, is not going to give Mr. Snowden the respect that many of us think he deserves, even though it pushes Obama to the podium to say and do what he has already said and done, rethinking how this program ought to work.

But Snowden won’t get any credit for that from the president. I’m not naive; I don’t expect that from the president of the United States. He’s the head of the empire.

But there’s no doubt about the fact that we wouldn’t be in this conversation –

Smith: That’s exactly right.

Tavis: – were it not for Edward Snowden.

Smith: That’s exactly right.

Tavis: So is he a whistleblower or is he a traitor?

Smith: I think he can be – I saw an interesting piece this morning that he could be both. If you think about it –

Tavis: That’s fascinating.

Smith: – not traitor; I would not call him a traitor. But is he a whistleblower and guilty at the same time? Is he acting in the public interest, and guilty of violating the law at the same time? Absolutely.

Tavis: But what does that other way? When the president suggests to Remnick in “The New Yorker” piece days ago that there was another way to do this, like what would be the other way?

Smith: Well, if we think about the Pentagon papers –

Tavis: Right, Daniel Ellsberg –

Smith: – you remember, Ellsberg gave the information “The New York Times” and a member of the Senate, who read the Pentagon papers on the floor of the Senate, and in that circumstance he was immune from any prosecution.

So that it’s entirely possible, if there are members of the Senate, if there are members of the Congress that Snowden believes would have supported him, he might have actually gone that way.

Tavis: That’s a big if. It’s this same Congress, this same Senate, that’s wearing him out every day, and particularly there are Republican members of the Senate and the House who have started smearing him with these suggestions that he was working with other rogue nations, perhaps.

There’s been no evidence of that to suggest, but it’s not just Republicans who said that. Dianne Feinstein here out of California, head of the Senate Intelligence Committee, a Democrat, has suggested that he may have been working with others.

So when you got Democrats and Republicans making those suggestions, I ask again, who would Snowden have turned to?

Smith: There are individual senators who have come out supporting Snowden, and those individuals are the people that you should be pursuing. That’s the ulterior route.

Tavis: On the front side, how would he have known that? They say that now, but in part, politicians can say that when they see the winds blowing, when “The New York Times” and other papers come out and say we need to rethink how we’re treating Edward Snowden at the moment and find a way to resolve this.

So senators can get courage most easily after the fact. How would he have known on the front side that he had friends in the Senate?

Smith: To the extent that he has any access to what goes on in those Senate hearings. He could know who asked which questions and who might be amenable to questioning the process that the government’s undertaking in terms of collecting information.

So if he were serious about pursuing this, he may well have pursued it. The question is did he ever even consider it seriously.

Tavis: Yeah. I was, to your comment a moment ago, your reference, at least, to Dr. King, who I’ve said many times, as our audience knows, I regard him personally as the greatest American this country’s every produced.

That’s my own assessment for a lot of different reasons, not the least of which is Martin King was willing to pay the price for his actions, and indeed, he paid the price, the ultimate price, with his life, as we all know.

I was on one of the Sunday morning shows a few weeks ago and said, somewhat tongue-in-cheek – as a matter of fact, the reference I made was to something that my co-panelists and I had been discussing in the green room.

So David Remnick is there, James Carville, Mary Matalin is there, Peggy Noonan is there, and I’m on the show. So we’re in the green room kind of chucking it up before we get to the set for the live show with George Stephanopoulos, and I sort of made a joke.

We made a joke in the green room that who knows how this story’s going to end up. Years from now, I said, Edward Snowden may end up on a postage stamp as an American hero.

So on the air, I just sort of reprised that conversation that we had, somewhat tongue-in-cheek, in the green room, and Lord, all hell broke loose on the Internet.

“Tavis Smiley suggested Edward Snowden might be on a postage stamp one day,” and it just kicked up a huge viral sort of conversation. I raise all that to ask again you the question as to whether or not you think that 25, 50 years from now, like Ellsberg and the Pentagon Papers, we might be viewing Edward Snowden differently?

Smith: I think that’s entirely a possibility. I am not averse to saying that he is serving the public interest in what he’s done. There may be a price to pay. Probably, looking at the statutes, and I did this morning, he could be in violation of the law without question.

But that does not mean that his violation of the law does not serve the public interest under the circumstance, and it may take the long view to get people beyond the vehement and overwrought responses that they’re having at this moment to this particular individual’s actions.

Tavis: What does this say to whistleblowers, if for those who regard him – not everybody does, I’m clear about that. But for those who do regard him as a whistleblower, what’s the message here to whistleblowers in the future?

Smith: The message to whistleblowers is that the idea of protection of a whistleblower is a relatively recent idea. It’s not an idea that Martin Luther King had at the time he was talking about civil disobedience, that Thoreau had at the time he was talking about civil disobedience.

These were people who understood that to disobey an unjust law requires payment of a price. But it is doing the moral thing. Now, to the extent that that’s what comes out of this, whistleblowers ought to understand that there is a higher value being served by whistleblowing, and they shouldn’t necessarily look to a protective law in order to blow the whistle.

Tavis: So I take that point. So let me ask – since this is your area of expertise – what does the punishment look like? I know I’m putting the cart in front of the horse –

Smith: Yeah, yeah.

Tavis: – because he and his people and whether he’s going to have the conversation or his people will have the conversation with Eric Holder, the attorney general, that has not happened as yet, at least as we know sitting here.

Who knows what happens behind the scenes? But publicly, we do not know yet that a conversation has happened. When that conversation happens, given the punishment, ultimately, that he could receive – there’s no exact answer to this.

But what do you think the conversation – if you were Snowden’s lawyer, what kind of conversation would you be having –

Smith: The conversation would look at the public benefit that’s been generated. The president is talking about adjusting the surveillance processes in ways that most people in the United States agree with, and this discussion started because of my disclosures.

Tavis: Then Holder says across the table, “But son, you broke the law.”

Smith: Fine.

Tavis: “And you have to pay a price for that.”

Smith: A price. A price –

Tavis: And what is that price?

Smith: That price – there are a number of people who’ve broken the law and have served a year, two years, three years. It doesn’t have to be maximum security in terms of the service.

The choice is up to Holder. Holder has lots and lots of leeway. There was no stated sentence, no fixed sentence, no required minimum sentence that I saw in the statute.

Tavis: Even if Holder, if in private Attorney General Holder, if in private President Barack Obama, if deep in their soul, as Obama has a bust of Dr. King sitting in the Oval Office, who was the ultimate, quintessential example for being spied on by the government.

If deep in their souls Obama and Holder believe that may have done the right thing, but I can’t say that publicly, how much trouble are they putting themselves in – the administration, Mr. Holder, Mr. Obama – if they were to whittle that down?

Because I can see Republicans and the right wearing them out over being soft on crime, particularly when our nation’s security is at stake. So how can Holder negotiate anything down?

Smith: The fact that we do not have a second Obama administration – yet a third Obama administration.

Tavis: A third. We do have a second, yeah. I know your point (unintelligible).

Smith: We have a second.

Tavis: Right.

Smith: If people are serious about this – President Clinton granted pardons at the end of the term.

Tavis: Yeah, yeah.

Smith: That is the extreme possibility. The fact that there will be Republican criticism, right-wing criticism, Internet criticism, is a guaranteed result.

Tavis: But the ultimate irony of that is, since you mentioned the Clintons, the ultimate irony, and I say this with all due respect – these are just the facts – Hillary Clinton is regarded by many as much more of a hawk than Barack Obama has been.

Were Clinton, Hillary, to be elected president and this issue not be resolved, it ain’t no foregone conclusion that Snowden will be treated any better by her than he would be by the Obama administration.

Smith: Exactly right. Yet as secretary of State, she was in the situation where her people were at risk as a result of disclosure of the kinds of information that Snowden released.

Tavis: Law professor Edwin Smith out of USC. This conversation obviously will continue for months, maybe years on end, and I hope I’m around here in 25, 30 years, Professor, to see how Snowden is regarded –

Smith: Yes. Exactly right.

Tavis: – a few decades down the road. Until then, good to have you on the program.

Smith: Good to be on.

Tavis: Thanks for your insights.

Smith: Thank you.

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Last modified: February 6, 2014 at 11:51 am