Friday, August 29, 2014

The case for pardoning Ed Snowden

One year ago today, the world learned that Ed Snowden, a 29-year-old contractor for the National Security Agency, was responsible for one of the biggest and most consequential disclosures of classified documents in US history. A few days later, Snowden departed Hong Kong for Latin America. But he wound up stranded in Russia after the US revoked his passport.

Snowden is charged with three felonies for his unauthorized disclosure of NSA secrets, and just last month Secretary of State John Kerry demanded that Snowden "man up" and return to the United States to face trial.

But the government's continued pursuit of Snowden is a mistake. Snowden doesn't deserve to go to prison, and Obama isn't doing himself any favors in his continued efforts to put him there. Instead of prosecuting Snowden, Obama should pardon him.

The Snowden disclosures were good for America

The most important reason to pardon Snowden is that his disclosures were in the public interest. In a democracy, the public has a right to know about government surveillance activities, especially those that occur on American soil. Over the last decade, excessive secrecy has allowed the government to mislead the courts, the Congress, and the public about its surveillance activities. Snowden's disclosures brought long-overdue transparency to these programs:

  • The Snowden documents revealed that the NSA was collecting information about every domestic phone call in the United States. This program was based on Section 215 of the Patriot Act, which allows the government to obtain business records which are "relevant" to a terrorist investigation. In 2011, Sen. Ron Wyden said that the public "will be stunned and they will be angry" when they learned how the government was interpreting this provision. But he was barred from giving details of the program.
  • In March 2013, Ron Wyden asked the Director of National Intelligence, James Clapper, if the government was collecting information about millions of Americans. Clapper's answer? "No sir." Snowden's revelation of the phone records program made it clear that this was a lie.
  • In February 2013, the Supreme Court dismissed a legal challenge to warrantless wiretapping because the plaintiffs couldn't prove they had been spied on. The government had assured the Supreme Court that if it ever prosecuted defendants using information gathered with warrantless wiretaps, it would notify the defendants so they could raise a constitutional challenge. But after Snowden revealed details of the administration's warrantless spying program, the government was forced to admit it had misled the Supreme Court. The government hadn't been notifying defendants subject to warrantless wiretaps.
  • In August, the president claimed that "what you're not reading about is the government actually abusing these programs and, you know, listening in on people's phone calls or inappropriately reading people's emails." A few days later, Washington Post reporter Barton Gellman revealed an audit provided to him by Snowden. It found 2776 cases of "unauthorized collection, storage, access to or distribution of legally protected communications" over a 1-year period. The problems "range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls."
  • After Snowden's revelations, the government released a previously-classified court opinion from the secretive Foreign Intelligence Surveillance Court. The document faulted the government for "substantial misrepresentation regarding the scope of a major collection program" and "repeated inaccurate statement made in the government's submissions."

"There’s no doubt that Mr. Snowden’s leaks triggered a much more rapid and passionate response than would have been the case if I had simply appointed this review board to go through, and I had sat down with Congress and we had worked this thing through," the president acknowledged in August. Still, the president said he would have preferred a "lawful, orderly examination of these laws" and insisted that "we would have gotten to the same place."

But that doesn't seem very likely. It's hard for the public to effectively criticize programs it doesn't know exist. And without public pressure, intelligence agencies would have had little incentive to either disclose or curtail their own spying activities. Even worse, the intelligence agencies have sometimes used their monopoly over information about its programs to mislead Congress, the courts, and the public.

Hence, a robust debate over the NSA's programs could only have occurred after someone alerted the public to the scope of the NSA's activities. Snowden did so, at tremendous personal risk.

America needs more whistleblowers

Pardoning Snowden would also set an important precedent, making it more likely that others in the intelligence community will step forward when the public was being denied access to information it needs to know.

Encouraging more whistleblowing wouldn't just be good for the public. It would also make it easier for the courts, Congress, and even the president himself to keep a watchful eye over intelligence agencies. Sen. Dianne Feinstein, the chairman of the Senate Intelligence Committee, didn't learn about the audit revealing thousands of NSA abuses until the Washington Post contacted her staff seeking comment about it.

We don't know how much information Obama had about the NSA's programs prior to Snowden's disclosures, but there is precedent for US intelligence agencies keeping the commander in chief in the dark. In 1975, an aid to Richard Nixon testified that the president "didn't know half the things" intelligence agencies were doing that might be legally dubious. "If you have got a program going and you are perfectly happy with its results, why take the risk that it might be turned off if the president of the United States decides he does not want to do it," he asked.

If an intelligence agency official believes his activities will remain secret forever, he's more likely to try to mislead the public, the courts, the Congress, and perhaps even the president. But the possibility of Snowden-style leaks helps to keep intelligence officials honest.

Of course, some people, like the New York Times's Josh Barro, have argued that going easy on Snowden would set a bad precedent, allowing anyone to disclose military secrets without consequence. Obviously, it would be a terrible idea to completely eliminate penalties for leaking classified information.

But pardoning Snowden would hardly remove all risks to releasing classified material. Future leakers would almost certainly lose their jobs, and they would still face significant threats of prosecution.

More important, we can and should draw distinctions between disclosures that in the public interest and those that are not. Pardoning Snowden today won't prevent the president from prosecuting people who engage in less public-spirited leaks in the future. And the threat of prosecution will ensure that would-be leakers think twice before leaking frivolously.

But right now, the pendulum has swung way too far in the opposite direction. Pardoning Snowden would be a first step toward restoring a healthy balance between the military's need for secrecy and the public's right to know what the government is doing in its name.

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