Edward Snowden—the renegade contract employee of the National Security Agency (NSA) who released thousands of highly classified documents to the press in 2013 and now lives in exile in Russia—has once again become the subject of debate. Snowden has been charged under U.S. federal law with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.
Three civil-rights organizations, the American Civil Liberties Union, Amnesty International, and Human Rights Watch, have organized a campaign to press President Obama to pardon him before he leaves office. The House Permanent Select Committee on Intelligence (HPSCI) has recommended unanimously against a pardon. Surprisingly, the Washington Post editorial page also came out in opposition to a pardon for Snowden, despite the fact that the Washington Post news staff (which, to be sure, is separate from the editorial staff) was a key player in publishing the secret documents.
The Constitution, in Article II, Section 2, Paragraph 1, gives the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”* In general pardons are issued after a conviction when the president has determined that the public welfare is better served by not having the sentence carried out, but not always. Sometimes they are issued before a conviction or even an indictment, as in Gerald Ford’s pardon of Richard Nixon. The only constitutional restrictions are that the pardon relate to an offence under federal law and that it not involve impeachment.
Until 2014 President Obama had issued few pardons or commutations; then (after replacing the Justice Department’s Bush-era pardon attorney, who was accused of withholding evidence regarding a clemency application), he began issuing an unusually large number, primarily with regard to nonviolent drug offences for which the mandatory-minimum sentencing laws had changed since the offenders had been convicted. Perhaps the civil-rights groups had the president’s new attitude toward clemency in mind, and they are certainly mindful that that the end of his term is approaching.
The case for clemency was not new. It is based on the notion that Snowden is a whistle-blower, someone who has performed a public service by revealing fraud, waste, abuse, or illegal activity on the part of the government. This relates primarily to his revelation that the NSA was sweeping up the metadata of most landline phone calls made in the United States and then keeping them on file for possible future investigations. The metadata include the phone number called, the time of the call, and the duration of the call, but not the content of the conversation.
Snowden has argued that he could not have achieved his goal by going through officially approved whistle-blowing procedures. This is probably true since the operations were already known to, and approved by, the relevant authorities, including the intelligence committees of Congress and the Foreign Intelligence Surveillance Court (FISC), and were viewed as being within the law as it existed at the time. The Bush administration, when it initially set up its mass-surveillance and warrantless-wiretapping programs after 9/11, did so completely outside the legal framework established for surveillance operations in the 1970s. Congress in 2007 and 2008 endeavored to bring the program back into compliance, making adjustments to both the programs and the laws to do so. Warrantless wiretapping had ceased.
Snowden’s revelations triggered a number of legal cases. Post-Snowden district court decisions were divided as to the legality of the program. Then the Second Circuit Court, although it did not address constitutional issues, held that Congress had not authorized an operation on the scale of the metadata program. Changes to the law subsequent to Snowden’s revelations (but already before that court decision) now require the phone companies to retain the same information and allow the intelligence community to receive it only in specific cases and only with warrants issued by the FISC (warrants for which the FBI, not the NSA, must apply). Interestingly, this has been described by civil-liberties advocates as a major breakthrough and by intelligence professionals as an inconvenience that reduces efficiency, but not necessarily as a fundamental change to the program. (According to the NSA’s general counsel, the new arrangement actually gives the NSA access to a larger store of records while sparing it the storage costs.)
The difference in reactions between the civil-libertarians and the intelligence community presumably reflects each side’s assumptions as to whether the intelligence community was likely to abuse the system as it existed before. If the new system is less vulnerable to abuse, regardless of whether anyone plans to abuse it at the moment, then the change was probably worthwhile, but the basic program continues and is now unquestionably authorized. These changes (and some others, such as authorizing a lawyer, for the first time, to argue against the government’s case before a major FISC decision) are a consequence of Snowden’s revelations.
If Snowden had exposed only that one program, the one that figured in the first document he released, one that had stretched the limits of authorization and that had not proved particularly effective, then his case for clemency would have been stronger. Although the metadata story dominated the debate in the United States, it was a drop in the bucket of what Snowden and his associates had revealed.
HPSCI, in a brief, unclassified executive summary of a classified report on the Snowden affair, asserted that Snowden had removed 1.5 million documents and that “the vast majority of the documents he stole have nothing to do with programs impacting individual privacy interests—they instead pertain to military, defense, and intelligence programs of great interest to America’s adversaries.” These included intelligence-gathering programs that targeted Russia, China, al-Qa’ida, and ISIS. Further, the committee argued that whistle-blower laws do not permit the release of classified information, disputed Snowden’s claim that he had tried to use official whistle-blower procedures, and termed him a “serial fabricator and exaggerator,” among other accusations.
Barton Gellman of the Washington Post and the Century Foundation, who was one of the reporters who published Snowden’s documents, dismissed the HPSCI report as “aggressively dishonest” but focused his response on refuting the “fabricator” charges. Indeed, these charges were questionable and arguably irrelevant to the case. Gellman also argued, not without foundation, that the intelligence community could not know exactly how many documents Snowden had actually copied and taken, only how many to which he had gained access.
With regard to the key question of possible damage to national security from the release of state secrets, however, Gellman simply suggested that several other well-known spies from the past (or George W. Bush through incompetence) did a lot of damage, too, and then segued into a discussion of whether the added inconveniences to the intelligence community’s operations really constituted damage. That is, at best, evading the question.
Another commentary from the Century Foundation may shed light on one of the key differences in the way journalists and intelligence officials view this issue:
“Snowden bears responsibility for providing classified documents to reporters. The reporters and their editors bear responsibility for making them public. Snowden left the choice to editors at the Guardian, the Post, and later other news organizations. This was by design. Snowden could have handed over his cache of files to WikiLeaks; instead he deliberately left it to experienced journalists to choose which documents were newsworthy and in the public interest.”
This may very well reflect journalists’ thinking, but I suspect that intelligence officials will never be impressed with the argument, “Well, I could’ve given it to WikiLeaks.” There are two issues here: Whether handing documents to journalists is an acceptable form of vetting, and whether publishing them in the press where U.S. citizens can scrutinize them is an unalloyed good.
On the first point, intelligence professionals are not going to accept that there is a substantial difference between given classified documents to “experienced journalists” and giving them to public or giving them to the enemy for that matter, or that the release of state secrets is all right if journalists find them to be newsworthy. Journalists are not necessarily experts on the topics they cover, are not privy to the context of those documents that they receive, may not understand the likely consequences of their disclosures, and are not in a position to weigh relevant trade-offs. They can be, and often are, manipulated with selective leaks. Benjamin Wittes of the Brookings Institution and the Lawfare blog objected on substantive grounds to the Pulitzer Prize issued to the Washington Post for its “insightful and authoritative” reporting of the Snowden leaks:
“The Post got big things wrong in the stories the [Pulitzer] board honors. It reported that NSA has access to the servers of internet companies—a fact it then changed in the story without running a correction, for example. It grossly misreported, using entirely true facts, on a compliance audit so as to present it as suggesting nearly the opposite of what it actually shows. And it frequently reported on the most routine sort of overseas intelligence collection, collection of precisely the sort the law authorizes, in breathless tones suggestive of gross impropriety. The Post‘s reporting has indeed been authoritative, though not because it has been good or consistently accurate; its authority has been part of the problem. Its coverage has often been the opposite of insightful. And it has in fact served to help the public misunderstand the issues on which it was intended to shed light.”
On the second point, Russia, China, North Korea, al-Qa’ida, and ISIS can read the Washington Post, the Guardian, and the other newspapers as easily as U.S. citizens. The only advantage over conventional espionage, in which documents are furtively copied and stolen, is that we know the information is out there and available to them. It is worth noting that the Justice Department’s Office of Legal Counsel looked into this question in June 1942, at the height of World War II (in an opinion released to the public only in 2013).**
In the case under review, the opinion held that “. . . it seems clear that the general public was ‘not entitled to receive’ the facts disclosed, and that the enormous circulation of the newspapers in question make it practically certain that the story would reach the enemy.” (Emphasis added.) And that, of course, was before the Internet made instantaneous worldwide publication a routine occurrence. Although it has not been the practice in the United States, and it does not appear to be the position of the Justice Department today, the opinion at that time held that the reporter (and possibly the managing editor and the publisher, depending on their intent and knowledge of the facts) could be held liable under the Espionage Act.
Timothy Edgar, who has had the perhaps unique experience of working as a lawyer for both the American Civil Liberties Union and the U.S. Intelligence Community, sequentially, has put his finger on a fundamental underlying dilemma. “The NSA’s operations are essential to national security and to international stability, but it is hard to reconcile them with the values of a free society.” Edgar concludes that Snowden should be granted a pardon, “even if he does not personally deserve one,” because “Snowden forced the NSA to become more transparent, more accountable, more protective of privacy—and more effective. Today, the NSA’s vital surveillance operations are on a sounder footing—both legally and in the eyes of the public—than ever before.”
Snowden would probably not be pleased to be remembered for making the NSA more effective. Apart from that, the post-Snowden reforms do not really negate the dilemma between “essential to national security” and “hard to reconcile with the values of a free society.” We will be struggling with this dilemma for a long time to come; the gap cannot be definitively bridged. The reforms have improved the situation, though. They continue the process begun some 40 years ago, with the establishment of the congressional intelligence committees and the FISC, to put together a system that allows “accountability without creating transparency,” as Wittes has termed it, for the nature of intelligence activities will not allow for the sort of transparency that exists in other branches of government.***
Questions then naturally arise: Do the reforms, which are the largely unintended consequences of some of Snowden’s actions, outweigh the damage done by most of his actions, as Edgar believes they do? Would a pardon for Snowden encourage others to follow in his footsteps, which even Edgar sees as a negative outcome? As it stands, Obama has expressed no interest in granting a pardon in this case. At best, if he were to return for trial, Snowden could use the reforms to argue for a reduced sentence after conviction.
*A pardon eliminates a sentence (although not the record of a conviction) and restores full citizen’s rights. An amnesty is a pardon applied to a group of people. A reprieve is a postponement of sentence. A commutation is a change of sentence, usually to one less severe. All are forms of clemency, and the Supreme Court had determined that the constitutional clause permits all forms of clemency.
**There was no formal publication of OLC opinions prior to 1977. This one was released as part of a program publishing opinions written between 1933, when the office was founded, and 1977. The document in question is titled, “Criminal Liability for Newspaper Publication of Naval Secrets (June 16, 1942).”
***One of the things that we have learned from Snowden’s documents is that the secretive Foreign Intelligence Surveillance Court is more effective than anyone thought. Before, we knew only that the FISC had never disapproved a proposed program. Now we know that it has regularly forced modifications on those programs and has occasionally shut them down for breaking the rules.
See also Scott C. Monje, “Information Leaks and Politics,” American Political Culture: An Encyclopedia, vol, 2, ed. by Michael Shally-Jensen (Santa Barbara, CA: ABC-CLIO, 2015), pp. 572–86.
