Edward Snowden: The Case For a Pardon

Edward Snowden, the former National Security Agency (NSA) contract employee, meeting in Moscow with activists., a photo by Pan-African News Wire File Photos on Flickr.

Snowden affair: the case for a pardon

Snowden gave classified information to journalists, even though he knew the likely consequences. That was an act of courage

The Guardian, Wednesday 1 January 2014 18.16 EST

In an interview with the Washington Post just before Christmas, Edward Snowden declared his mission accomplished. At first sight it seemed a grandiose, even hubristic, statement. In fact, it betrayed a kind of modesty about the intentions of the former NSA analyst. "I didn't want to change society," he explained. "I wanted to give society a chance to determine if it should change itself."

Mr Snowden – through journalists, in the absence of meaningful, reliable democratic oversight – had given people enough knowledge about the nature of modern intelligence-gathering to allow an informed debate. Voters might, in fact, decide they were prepared to put privacy above security – but at least they could make that choice on the basis of information.

That debate is now actively happening. In a remarkable week before Christmas, a US judge found that the "almost Orwellian" techniques revealed by Mr Snowden were probably unconstitutional. A review panel of security experts convened by President Obama himself made more than 40 recommendations for change. The leaders of the eight major US tech companies met the president to express their alarm.

Parliamentarians, presidents, digital engineers, academics, lawyers and civil rights activists around the world have begun a wide-ranging and intense discussion. Even the more reasonable western security chiefs acknowledge a debate was necessary.

Man does civic duty, and is warmly thanked? Of course not. Should Mr Snowden return to his homeland he can confidently expect to be prosecuted under the Espionage Act and, if convicted – like Chelsea Manning before him – locked away for a very long time. For all his background in constitutional law and human rights, Mr Obama has shown little patience for whistleblowers: his administration has used the Espionage Act against leakers of classified information far more than any of his predecessors. It is difficult to imagine Mr Obama giving Mr Snowden the pardon he deserves. There has been some talk of an amnesty – with NSA officials reportedly prepared to consider a deal allowing Mr Snowden to return to the US in exchange for any documents to which he may still have access. The former head of MI5, Dame Eliza Manningham-Buller recently predicted such an outcome, though Mr Obama's own security adviser, Susan Rice, thought he didn't "deserve" it. A former CIA director, James Woolsey, suggested he "should be hanged by his neck until he is dead".

The first world war vintage Espionage Act is, like its British counterpart, the Official Secrets Act, a clumsy and crude law to use against government officials communicating with journalists on matters where there is a clear public interest – if only because it does not allow a defendant to argue such a public interest in court. It is at least possible that, should he ever face trial, there could be a "jury nullification", where a defendant's peers acquit him even though technically guilty – as in the UK in the 1985 case of Clive Ponting, a civil servant who leaked defence information. Such an outcome would be a humiliating rebuke to those bringing a prosecution.

Mr Snowden gave classified information to journalists, even though he knew the likely consequences. That was an act of some moral courage. Presidents – from Franklin Roosevelt to Ronald Reagan – have issued pardons. The debate that Mr Snowden has facilitated will no doubt be argued over in the US supreme court. If those justices agree with Mr Obama's own review panel and Judge Richard Leon in finding that Mr Snowden did, indeed, raise serious matters of public importance which were previously hidden (or, worse, dishonestly concealed), is it then conceivable that he could be treated as a traitor or common felon? We hope that calm heads within the present administration are working on a strategy to allow Mr Snowden to return to the US with dignity, and the president to use his executive powers to treat him humanely and in a manner that would be a shining example about the value of whistleblowers and of free speech itself.


January 1, 2014

Edward Snowden, Whistle-Blower

By THE EDITORIAL BOARD
New York Times

Seven months ago, the world began to learn the vast scope of the National Security Agency’s reach into the lives of hundreds of millions of people in the United States and around the globe, as it collects information about their phone calls, their email messages, their friends and contacts, how they spend their days and where they spend their nights. The public learned in great detail how the agency has exceeded its mandate and abused its authority, prompting outrage at kitchen tables and at the desks of Congress, which may finally begin to limit these practices.

The revelations have already prompted two federal judges to accuse the N.S.A. of violating the Constitution (although a third, unfortunately, found the dragnet surveillance to be legal). A panel appointed by President Obama issued a powerful indictment of the agency’s invasions of privacy and called for a major overhaul of its operations.

All of this is entirely because of information provided to journalists by Edward Snowden, the former N.S.A. contractor who stole a trove of highly classified documents after he became disillusioned with the agency’s voraciousness. Mr. Snowden is now living in Russia, on the run from American charges of espionage and theft, and he faces the prospect of spending the rest of his life looking over his shoulder.

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

Mr. Snowden is currently charged in a criminal complaint with two violations of the Espionage Act involving unauthorized communication of classified information, and a charge of theft of government property.

Those three charges carry prison sentences of 10 years each, and when the case is presented to a grand jury for indictment, the government is virtually certain to add more charges, probably adding up to a life sentence that Mr. Snowden is understandably trying to avoid.

The president said in August that Mr. Snowden should come home to face those charges in court and suggested that if Mr. Snowden had wanted to avoid criminal charges he could have simply told his superiors about the abuses, acting, in other words, as a whistle-blower.

“If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistle-blower protection to the intelligence community for the first time,” Mr. Obama said at a news conference. “So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”

In fact, that executive order did not apply to contractors, only to intelligence employees, rendering its protections useless to Mr. Snowden. More important, Mr. Snowden told The Washington Post earlier this month that he did report his misgivings to two superiors at the agency, showing them the volume of data collected by the N.S.A., and that they took no action. (The N.S.A. says there is no evidence of this.) That’s almost certainly because the agency and its leaders don’t consider these collection programs to be an abuse and would never have acted on Mr. Snowden’s concerns.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not. Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government. That’s why Rick Ledgett, who leads the N.S.A.’s task force on the Snowden leaks, recently told CBS News that he would consider amnesty if Mr. Snowden would stop any additional leaks. And it’s why President Obama should tell his aides to begin finding a way to end Mr. Snowden’s vilification and give him an incentive to return home.


New York Times pushes clemency for Edward Snowden. Justified?

The case for some sort of clemency for Edward Snowden also involves a judgment on the National Security Agency's activities. If NSA phone metadata collections are held to be unconstitutional, the chance of a deal might rise.

By Peter Grier, Staff writer / January 2, 2014

“Yes," says The New York Times editorial board, in perhaps the most high-profile defense yet of the famous fugitive. On Jan. 1, the Times published an editorial that argues that the information revealed by Mr. Snowden has had “enormous value” and launched a nationwide debate on government surveillance.

Snowden couldn’t just go to his superiors and work through channels to reveal NSA abuses, claims the Times, because legal protections for whistle-blower activities don’t apply to government contractors such as him. Meanwhile, there’s no proof his leaks have actually damaged US security, according to the paper’s editorial board.

“When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government,” writes the Times.

The British paper The Guardian has published an editorial with a similar point. This New Year’s push for mercy is likely to drive official Washington’s arguments over Snowden and his legacy, already heated, to new levels.

For instance, Business Insider political editor Josh Barro immediately fired back at the NYT’s logic, tweeting that it would be "terrible" to give Snowden a break along the lines laid out in the editorial, because to do would establish a dangerous precedent:

But the Atlantic’s Conor Friedersdorf, a longtime critic of the Obama administration’s surveillance and drone policies, fired right back at Mr. Barro, saying that pardons by definition deal with legal cases to which normal rules don’t seem to apply.

“They are meant to be used judiciously, on an ad hoc basis, in what are clearly exceptional circumstances,” Mr. Friedersdorf writes.

That’s just a taste of what security wonks will be tussling over. Of course we’ve got a couple of comments here ourselves.

First, any sort of negotiated deal with Snowden won’t happen quickly. That’s because, as a practical matter, it would probably have to wait until legal challenges to the NSA’s newly revealed activities have played out in the courts. The resultant legal framework could have a powerful effect on the inherently political nature of any Snowden clemency, after all. If the NSA’s phone metadata collections are held to be unconstitutional, his chances of a return to the US might rise. If not, it might be hard for any president to offer Snowden a deal he’d find acceptable.

Second (and related), your position on Snowden today likely depends on your snap judgment as to how history will judge the activities he revealed.

To the Times, and other clemency advocates such as the ACLU, he has laid bare widespread illegality and abuse. The NSA’s own internal auditor has judged that the agency exceeded its authority “thousands of times a year," writes the Times. The secret Foreign Intelligence Surveillance Court has rebuked the NSA for repeatedly providing misleading information about its surveillance activities.

“Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as [a recent] presidential panel recommended,” writes the Times editorial board.

Not everybody agrees with this judgment. Much of the coverage of Snowden leaks has exaggerated their reach, goes this view, while minimizing the effect of privacy safeguards that are already in place.

Washington Post opinion writer Ruth Marcus writes that her scale weighs against Snowden, for instance.

“Existing oversight, while flawed, is not as feckless as Snowden portrays it, and the degree of intrusion on Americans’ privacy, while troubling, is not nearly as menacing as he sees it,” Ms. Marcus writes.

Finally, can we leave Snowden’s personality out of this? Marcus judges that he’s got an overblown sense of self and of the importance of his actions, and that’s a perfectly legitimate opinion to have, but should it bear on his clemency outcome?

Whistle-blowers are often difficult. So are politicians. It takes a pretty big ego to step into the public arena to take on big issues, for good or ill. By going public with his identity, Snowden ensured that a good share of the coverage of his actions would focus on himself. But maybe it’s the NSA and what it does, not Snowden, that’s most important to the nation.

While it may be easy to "despise and reject Snowden," it is "much harder to despite and reject the discussion he touched off," writes New York University journalism professor Jay Rosen on his "Pressthink" blog.