In my estimation, there has not been in American history a more important leak than Edward Snowden's release of NSA material – and that includes the Pentagon Papers, for which I was responsible 40 years ago. Snowden's whistleblowing gives us the possibility to roll back what has amounted to an "executive coup" against the US constitution.
Since 9/11, there has been, at first secretly but increasingly openly, a revocation of the bill of rights for which this country fought 200 years ago. In particular, the fourth and fifth amendments of the constitution, which safeguard citizens from unwarranted intrusion by the government into their private lives, have been virtually suspended.
The government claims it has a court warrant under Fisa – but that warrant is from a secret court, shielded from effective oversight, and with the broadest possible interpretation. This makes mockery of the rule of law, let alone of the bill of rights. As Russell Tice, a former National Security Agency analyst, put it: "It is a kangaroo court with a rubber stamp."
For the president then to say that there is judicial oversight is a nonsense – as is the oversight function of the intelligence committees in Congress. The fact that their leaders were briefed on this and went along with it, without question, only shows how broken the system of accountability is in this country. As the founder James Madison wrote:
United States, that is what we now have. In effect, Congress has delegated its responsibilities and powers to the executive. The oversight structure has been shown to be a total sham: the congressional committees concerned have been totally co-opted. They are simply black holes of information that the public needs to know.
The surveillance revealed by Snowden's disclosures exposes this executive coup: that this is done with Congress briefed, but without the ability to resist or even debate the measures openly, makes a mockery of the separation of powers. What has been created is the infrastructure of a police state.
I do not say that the United States is a police state. We have not seen the mass detentions that would complete that process. But given the extent of this invasion of people's privacy, we do have the electronic and legislative infrastructure of one. If, for instance, there was now a war that led to a large-scale anti-war movement – like the one we had against the war in Vietnam – I fear for our democracy. If the government had then had the capability that it has now, I do not doubt there would have been mass detentions. These powers are extremely dangerous.
"I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."
I would say we have, in fact, fallen into that abyss. The Bradley Manning's access was very much more limited, to field-level information, Snowden's knowledge of his field is deep and extensive. The material he has released is higher in classification than what I had with the Pentagon Papers.
There are reasons for secrecy that have legitimacy, but what is not legitimate is to use that secrecy to hide action that is unconstitutional. Neither the president nor Congress may revoke the fourth amendment – but that's why what Snowden revealed was secret. His action does not deserve prosecution or punishment; rather, he deserves our thanks and admiration. "Courage on the battlefield," said Bismarck, "is a common possession", but even "respectable people are lacking in civil courage." Snowden has displayed enormous civil courage.
What I said 40 years ago was that I didn't care what they said about me; "just read the documents". To protect other people, I revealed what I had done so that I could say, "I did this on my own," without the knowledge or help of other people who might be suspected. We already know that the Department of Justice has ordered an investigation into the leak. So Snowden has done the same.
By being out in the open, Snowden could now testify before Congress under oath – if it calls on him. He could not do that if he were still anonymous, or if he were in this country. In 1971, I was on a $50,000 bond for my role in the release of the Pentagon Papers, but in this climate Snowden would not be on a bond; he would be in jail – just like Brad Manning – without bail and incommunicado.