The rights, duties, and norms of the American patriotic citizen have become ever more contentious since the divisive Sixties. They have become especially relevant in recent years with the actions of Edward Snowden and Colin Kaepernick, and with the election of Donald Trump and his proposed policies on immigration reform and his accusatory statements against those who will not stand for the national anthem.

Along with organized and informal groups of protesting citizens such as those of the Sixties, we have seen in the last five years individual citizens, empowered by technology and social media, roil the American political and social landscape with their individual actions. These techno-powered, defiant citizens are simply carrying on the traditions established and legitimized by the angry, defiant protestors and counterculture groups of the Sixties, only now they are in some cases acting alone. Also, they can gather more information, disseminate it, and garner support more quickly than the protestors of the Sixties.

In 2013, Edward Snowden, an intelligence contractor for the U.S. government and former CIA employee, copied and leaked thousands of classified documents to several British and American journalists, revealing the National Security Agency’s massive, warrantless surveillance and data collection programs. He has been called numerous things: a whistleblower, a traitor, and a patriot. Snowden’s actions broke federal law; he faces charges on theft and two counts under the 1917 Espionage Act.

Colin Kaepernick, the biracial, back-up quarterback for the San Francisco 49ers, challenged a common ritual of patriotism by sitting during the national anthem at pre-season NFL games in August, 2016, eventually switching to kneeling. His actions did not break any law. There is no law requiring that a citizen stand for the national anthem. However, all expectations of a good citizen in a state or civilization cannot be, and should not be, codified. Good civilizations also have unwritten citizen’s norms and codes of ethics. These help to identify and bind the citizenry. 

The ancient Romans had a word for this, civilitas, which Mary Beard in her book SPQR defines as: “we’re all citizens together.” The best, if uncommon, word we have for this is civicism: civic spirit.

Empowered by the internet and social media, such actions by these unconventional presumably patriotic citizens would appear to have become fixtures in American society. What follows is a five-point framework for evaluating such actions, a framework rooted in the principles of the Just War tradition, reaching back to Hugo Grotius of the 17th century.

I. Noble Aim: Was the citizen’s aim noble or did the citizen perform the action simply for personal gain.  No evidence exists that would suggest they were pursuing fortune, fame or celebrity. Of course, sometime—even for the citizen him/herself—it is hard to be sure of one’s motives.

II. The Clarity and Achievability of the Citizen’s Goal: Did the citizen have a clearly stated goal? Would a reasonable person say that the citizen had a good chance of succeeding in achieving it? Without a clearly stated goal, the citizen cannot be focused on achieving some good. If the chances of success are minimal, the citizen can not only be wasting his/her time, but also cause needless conflict, instability, or even chaos.

III. The Suitability of the Means Chosen to Obtain the Goal: Was the means chosen to achieve the goal suitable? Was it discriminatory and focused or was it broad-brushed and heavy-handed causing unnecessary collateral damage?

IV. Proportionality of Action: Did the potential good outweigh the potential bad caused by the action? Was it designed to effect the greatest good while causing the least harm? Before the fact, this question can be hard to answer. In hindsight, of course, the benefits and harm of an action are still challenging but easier to judge.

V. Acceptance of Consequences: Was the citizen prepared to accept the consequences of the actions or, conversely, did the citizen want—so to speak—to have his/her cake and eat it too?

Two prefatory comments: If one wishes to hold the unconventional patriot to a very high standard, his/her actions should meet all five criteria. Second, even if one agrees with these criteria, objective, unbiased information relating to them may be hard to obtain.

Let us consider how the actions of Snowden and Kaepernick stack up against these criteria.

I. Noble Aim: 

Both individuals appear to have acted with good intentions and for selfless and noble aims. Snowden’s intention was to reveal the global, illegal surveillance programs, many run by the National Security Agency with the cooperation of telecommunications companies and European governments. Implied was his desire to stop the illegal surveillance and to improve the privacy of the individual citizen, a right he called “the fountainhead of all our rights.” In June 2013, he stated: “I’m just another guy who sits there day to day in the office, watches what’s happening and goes, ‘This is something that’s not our place to decide, the public needs to decide ….” His authority for making such a decision on the public’s “need to know” can be questioned.

Kaepernick’s intention was to bring attention to and protest police brutality, specifically, that directed at people of color. Of course, implied was his desire for this somehow to change.

It does not appear that either took their actions for personal gain. No evidence exists that would suggest they were pursuing fortune, fame or celebrity. Of course, sometime—even for the citizen him/herself—it is hard to be sure of one’s motives.

II. The Clarity and Achievability of the Citizen’s Goal:

In the case of Snowden, his short-term goal was reasonably clear and achievable. He wished to reveal the surveillance programs, and he did that through a number of international journalists, Glenn Greenwald, Laura Poitras, and Ewen MacAskill. His revelations were eventually printed in high profile newspapers, such as the Guardian and the Washington Post. The larger goal of at least curbing the programs, he argues, was also achieved. In September 2016 he was asked about this and he said: “Do I think things are fixed? No. Can any single individual fix the world? No that’s too much. Have things improved. Yes.” He cited important changes in American and European laws, and that some internet companies have made changes, pushing back against government pressure. People are certainly more aware of the issue. “Things have gotten better,” he said. Snowden’s website currently lists numerous achievements to date, including many investigations into illegal surveillance, greater transparency, legislative reforms, lawsuits, and a more informed public debate. 

A U.S. appeals court in 2015 ruled that the bulk data collection of American phone records revealed by Snowden was illegal. Congress then replaced that program with another which keeps the bulk data under the control of the phone companies.

In the case of Kaepernick, a positive goal was implied rather than clearly stated. His statements about his actions were stated in negative terms: “There is police brutality—people of color have been targeted by police.” He criticized the inadequate training police receive and asserted he was not “going to show pride in a flag for a country that oppresses black people and people of color.” By not engaging in a fundamental civic ritual, he presumably was acting for the positive goal of police reform: to end or at least to curb racism, the achievability of which can be questioned with his type of action. He has succeeded in provoking President Trump to weigh in and further elevate the issue. On September 22, Trump publicly urged owners to fire or suspend protesting players and fans to stage boycotts of the NFL.

Kaepernick himself appears content with his achievements. In March 2018, ESPN’s Adam Schefter wrote that “Kaepernick no longer wants his method of protest to detract from the positive change he believes has been created” and that “the amount of national discussion on social inequality… affirmed the message he was trying to deliver.” Kaepernick remains unemployed as a football player. Reportedly he is staying in shape in case a call comes. He is also running civil rights education events for disadvantaged youth.

III. The Suitability of the Means Chosen to Obtain the Goal:

Snowden did choose means that were suitable. He used his revelations to educate the public through disclosures to major media. However, Snowden’s actions get a poor grade for discrimination. Rather than releasing carefully-selected NSA documents, he revealed “thousands.” His website indicates that he reached a point where he “realized that the wrongdoing he witnessed was something that should be determined by the public.” Even if one agrees with this, the necessity of the magnitude of the release can be questioned.

Also, in the case of Kaepernick, one can challenge the means he chose. Certainly he can be admired for his courage and clearly he reached a wide audience, but apart from sporadic interviews it appears he never followed with other, more substantive actions to fight racially motivated police brutality, e.g., publishing a thoughtful letter or essay explaining his actions fully and what specific things he would like to see happen to address the problem. He did address the short training period for many police; however, we might expect a better “game plan” from an NFL quarterback.

IV. Proportionality of Action:

In the case of Snowden, the private citizen is now informed about the enormous and illegal NSA surveillance programs. However, he has clearly embarrassed the U.S. government. His critics have also asserted that his actions have made it more difficult to gather necessary intelligence on terrorists and other foreign threats. They speak of the extensive damage done to national security. Given the classified nature of the details, this aspect is hard to judge.

In the case of Kaepernick, one can say that he performed a service by elevating the issue to the national level, while producing little substantive damage. He broke no laws; he simply broke a norm of conventional patriotism. The conformist, conventional patriot might argue that he has sown unnecessary division within the country.

V. Acceptance of Consequences:

Snowden has paid a heavy price for his actions. Fleeing from his native country, he traveled to Hong Kong and hoped to reach Latin America via Moscow. However, his passport was “annulled,” and he was left stranded in Russia. His website states that he is currently at an “undisclosed, secure location,” presumably in Russia. Unless pardoned, something rejected by the Obama administration and unlikely by the Trump administration, he faces charges on two counts under the 1917 Espionage Act, an act does not allow for a “public interest” or “whistle blower” defense. Snowden has stated he would consider a prison term as part of a plea bargain.

To date, Kaepernick remains unemployed as a quarterback. His supporters assert collusion among the generally conservative and conventionally patriotic NFL owners who may say publicly that they support his right to protest but privately shun him primarily because of his actions and the trend he began.

Summation

Overall, in using this framework to judge the actions of these two unconventional patriotic citizens, we can say that both were motivated by noble aims and good intentions. Snowden’s goals were clear and he has achieved much at great personal expense, assuming one highly values the individual right of privacy. The means he chose to reach his goals were suitable, and he has stood stoical with the consequences of his actions. Nonetheless, he gets a poor grade on discrimination, as he released so many documents with sensitive material.

Kaepernick gets weak grades for his goals and the means he chose to achieve them. However, he broke no laws and has forced us to think about racism within our society, especially in the ranks of our police. He has remained open and upright in his unemployed status.