Should Snowden Be Pardoned?

Hero or traitor? Should Edward Snowden be honored for exposing a government that for a decade had been secretly collecting privileged data from all Americans, as well as a more widespread program
called PRISM, covered here, or should he be imprisoned for revealing to the world the spying our government conducts around the globe in the cause of national security?

With three months left in President Obama's term, the Internet abounds in e-mail that asks you to join petitions to Obama to add Snowden to the list of persons a departing president traditionally exonerates as a final act of office. The ACLU, Amnesty International and Human Rights Watch have banded together to run at least one full-page ad in The New York Times asking for contributions at pardonsnowden.org. There's even a movie: It's no coincidence that Oliver Stone chose this moment to release "Snowden" (in theaters, but he'd have had a bigger audience on television). As if to undercut it, the House intelligence committee released a summary of its report on the Snowden affair the day before the movie's release.

Snowden wants to come home. And the administration would apparently like to put an end to the problem. The counsel to national intelligence chief James Clapper (the latter the one who lied to Congress about National Security Agency surveillance, and with no consequences) has reportedly floated the idea of a five year prison term if Snowden would plea to one felony count (in place of the three lodged) but he has refused, partly out of concern that it would deter future whistleblowers.

That's a marked turnabout from the reflexive reaction to Snowden when the NSA's snooping was first revealed. John Boehner, House Speaker at the time, called Snowden "a traitor”. Dianne Feinstein, chair of the Senate Intelligence Committee, said, “I think it’s an act of treason”. Minority Leader Mitch McConnell said Snowden should “be prosecuted to the fullest extent of the law”, claiming that “each of these programs is authorized by law, overseen by Congress and the courts, and subject to ongoing and rigorous oversight” — which was shown not to be true. "For personal gain, he's now selling his access to information", House Intelligence Committee Chairman Mike Rogers (R-MI) told journalists.

Rogers belongs to an element in this country that dismisses facts and prefers the bile of its gut feelings. They vilify Snowden because, where did he go? He went to Russia and there's no question he's sold his trove of secrets to Putin, after doing the same in Hong Kong. In fact, to this day there is no evidence of his selling anything; he's rebuffed offers of cash for interviews and even refused book deals.

They forget that Moscow was a stopover on Snowden's way to seek asylum in South America, that he was stranded for days in the international transit lounge when Obama annulled his passport. "The Obama administration has now adopted a strategy of using citizenship as a weapon", said Snowden after a week in Russia. "Although I am convicted of nothing, it has unilaterally revoked my passport, leaving me a stateless person".

The Russia bias persists. Just now, in an editorial snidely titled "Snowden Misses Us", the The Wall Street Journal calls him "Comrade Snowden" and assumes he decided to "flee to Russia". The new House report cited earlier voices the same lie: He "fled to Russia".

Mr. Snowden said he gave all of the classified documents he had obtained to journalists he met with in Hong Kong. He says he kept none of them. He's a very careful man. Having fulfilled his objective of getting the information out to the world, what would have been the purpose of keeping a copy? He doubtless reasoned he should not make himself a target of foreign intelligence agencies by carrying the material with his person. He also asserted that he could guard against the documents falling into China’s hands because of his knowledge of that nation’s intelligence techniques; as an NSA contractor he had targeted Chinese operations and had taught a course on Chinese cyber-counterintelligence.

But that Journal edit wants to keep suspicion alive asking "if Mr. Snowden provided his documents, intentionally or otherwise, to Russian or Chinese intelligence services" and, like some Donald Trump nonsense endlessly repeated after proven a lie, says that, "none of what he exposed was in any way criminal".

Yet it was. Snowden's explosive revelations led to a federal court judge ruling that the NSA's activity — the wholesale collection of so-called metadata of America's phone calls — numbers called, time, duration — was “almost clearly unconstitutional” and “almost Orwellian”. (That another judge said the NSA's actions were "constitutional" was baffling inasmuch as there's a statute that says if you eaves drop on Americans without a Fourth Amendment warrant you go to prison for five years, and for each offense.)

The NSA argued that the snooping was essential for national security. Then NSA head Gen. Keith Alexander and Senate Intelligence Committee chair Dianne Feinstein (D-Ca) even made the fanciful claim that the 9/11 attacks could have been prevented had the program been in effect then (it was authorized by the George W. Bush administration in reaction to 9/11). Alexander testified to the committee that more than 50 terrorist attacks had been disrupted by the NSA phone program and pledged to come up with "a list" in a matter of days that would support his claim. He didn't.

Much later, Patrick Leahy (D-Vt), chairman of the Senate Judiciary Committee, was apparently handed such a list which he said did not show that “dozens or even several terrorist plots” had been thwarted and concluded. "If this program is not effective, it has to end".

End it did. Obama had set up a blue-ribbon commission which recommended 46 changes to surveillance and security practices and last year, after forty years of hands off, Congress curtailed the government’s surveillance liberties, passing a year ago June the USA Freedom Act. It requires NSA to obtain a court order to obtain phone traffic for numbers belonging to suspected terrorists. NSA ceased wholesale phone data collection at the end of last November.

In other words, Mr. Snowden made a convincing case that the government was in serious violation of constitutionally provided civil liberties. In recognition of what he had brought to light, laws were changed.

Snowden reminds his critics that he released nothing to the public. He turned over his trove of documents to four journalists and it was the newspapers represented by two of them, Britain's The Guardian and The Washington Post, that decided what to publish. Both won Pulitzers. In a stunning display of hypocrisy, the Post has just come forth with a editorial that says "No pardon for Edward Snowden".

“This is a man who has betrayed his country”, Secretary of State John Kerry said to NBC’s Brian Williams. Like Daniel Ellsberg, a patriot who stayed in the U.S. to “face the music”, Snowden should “stand in our system of justice and make his case”, was Kerry’s pronouncement.

It was former Attorney General Eric Holder's view that, "Snowden performed a public service" and for that he said he should come back and a face trial that would certainly reward that service with prison. Obama's previous press secretary, Jay Carney, said Snowden should be returned to the United States "where he will be granted full due process and every right available to him as a United States citizen facing our justice system under the Constitution". The Washington Post says in its editorial:

Ideally, Mr. Snowden would come home and hash out all of this before a jury of his peers. That would certainly be in the best tradition of civil disobedience, whose practitioners have always been willing to go to jail for their beliefs.

He wouldn't for a moment be able to hash out much of anything. He has been charged with violations of a law meant for spies, the WWI-era Espionage Act. It does not distinguish between selling secrets to foreign governments and leaks to the press of one's own country. It has no provision for defendants to make a case that they had acted in the public interest. The government is not required to demonstrate harm from the release of the classified materials.

Under the Act, Snowden would not be permitted to make the case that his actions led to reforms, nor to argue that he exposed government wrongdoing, as a federal district court had already ruled — violations well beyond what Section 215 of the Patriot Act allowed. The government would invoke the state secrets privilege to suppress any evidence presented by Snowden’s attorneys as endangering “national security”, no matter that the classified documents are already in the public domain. And forget about the Supreme Court weighing the question of whether the Espionage Act can be applied to leaks to the American public; it has ducked matters of press freedom under the First Amendment for the last 45 years.

Each of the two counts against Snowden, plus a third charge of theft of government property, carries a maximum prison sentence of ten years, but the government would assuredly pile on as many fabricated and redundant charges as needed to guarantee a life sentence. Look to the case of Bradley (now Chelsea) Manning: Charges against him were padded with "Classified cable — 2 years", "Classified memos — 10 years", "Military records — 10 years", Military records [again] — 10 years", "Army record — 10 years".)

Kerry refers to Ellsberg as if nothing has changed. Ellsberg was free on bail to inveigh against the Vietnam war for the entire 23 months he was under indictment, and then he was acquitted — both being unimaginable outcomes for Snowden, who would certainly be imprisoned without bail and isolated in solitary confinement while awaiting trial. Once convicted, he would likely remain in solitary for the entirety of his sentence. The United Nations Special Rapporteur found that the U.S. was guilty of cruel and inhuman treatment of Manning. He was kept in solitary confinement and isolated 23 hours a day for months, was kept naked and chained to a bed, and was subjected to sleep deprivation techniques, all three well known forms of torture.

As for that pardon, not under this president, who has granted few pardons and has acted with a vengeance toward whistleblowers and the press that has led him to bring criminal charges in eight cases under the Espionage Act, whereas all the presidents combined in the last 100 years have resorted to the Act only three times.

You might want to read what we have reported about how Thomas Drake was treated by this administration after exposing government waste to the press; or John Kiriakou for inadvertently revealing the name of a CIA agent, with no appreciation for his heroic takedown in a shootout of the most wanted terrorist of the moment in Pakistan; or James Risen of The New York Times for refusing to confirm a source already known to the government; or Fox News' James Rosen, accused as an "aider, abettor and/or co-conspirator” when he reported that North Korea was about to conduct another nuclear test. (You can find all these stories in detail in our November 2013 article, "Obama v. Leakers and the Press: Bad as Nixon Says Journalism Group").

And so we would say that, if Snowden ever expects to come home, he is best advised to take another look at the deal that may have been offered. Those in his camp extol what he has done. He has been steadfast and uniquely courageous. No one will hold acceptance against him. But given the government's treatment of political prisoners, he'd better spell out in exacting detail and make public the contractual terms of his confinement right down to what brand of toothpaste he'd be allowed to use.