Law & the Courts

No Pardon for Snowden

Snowden speaks to students in Toronto via remote video in 2015. (Mark Blinch/Reuters)
He’s not a whistleblower, he’s a criminal.

Edward Snowden, the former CIA and NSA contractor responsible for the worst leak in the history of American intelligence, is seeking a presidential pardon. “These were necessary things, these were vital things” to disclose, Snowden told the Guardian in an interview published this week. He has behind him the ACLU, Amnesty International, and Human Rights Watch, and a letter encouraging President Obama to grant the pardon has been signed by a swath of celebrities ranging from George Soros and Noam Chomsky to Apple co-founder Steve Wozniak and actor Danny Glover. Snowden, a biopic directed by Oliver Stone, opens in theaters this weekend.

But the hype and high-profile support do not change the facts. Edward Snowden should not be pardoned; he should be prosecuted.

As leak cases go, this is one even Eric Holder’s Justice Department could handle. Snowden has confessed his crime, explained how and why he did it, and admitted that he knowingly endangered national security. The only issue, of course, is whether Snowden qualifies for “whistleblower” protections, and three-and-a-half years later it’s clear that his disclosures about government surveillance practices came at a disastrously high price.

People on both sides of the political aisle were alarmed to discover the extent of America’s surveillance-gathering operations, the most controversial of which has been the NSA’s metadata program, and Snowden did reveal isolated instances of abuse and overreach, though no ongoing illegal practices. In an effort to assuage often-overwrought privacy concerns, Congress and the Obama administration have sought to curtail the NSA’s power to collect data in bulk; in May of last year, they (wrongheadedly, in our opinion) permitted Section 215 of the Patriot Act, which governed the metadata program, to expire, and replaced it with the misguided USA Freedom Act.

Snowden and his defenders point to these and other policy revisions as an implicit admission that the policies were unconstitutional to start with. But the constitutional basis for the metadata program — the Supreme Court’s 1974 ruling in Smith v. Maryland — is quite clear.

Meanwhile, the revelations about metadata collection, which have been the occasion for Snowden’s celebrity, constitute only a small portion of the information he exposed. According to former NSA director General Keith Alexander, the NSA has determined that Snowden had access to more than 1 million documents, and provided reporters with “probably over 100,000, and maybe even much more.” A declassified U.S. Defense Intelligence Agency report on the leak noted that Snowden absconded with 900,000 documents from the Department of Defense alone. And, as General Martin Dempsey, former chairman of the Joint Chiefs of Staff, testified before Congress: “The vast majority of the documents that Mr. Snowden exfiltrated from our highest levels of security, the vast majority had nothing to do with exposing government oversight of domestic activities. The vast majority of those were related to our military capabilities, operations, tactics, techniques, and procedures.”

The result has been a massive setback in American intelligence-gathering and defense. We know that specific counterterrorism operations and drug-interdiction efforts have been shut down because of Snowden’s leak. High-level officials, including former CIA deputy director Michael Morell, have stated that, post-Snowden, Islamic State and al-Qaeda terrorists have modified the way they communicate. British intelligence has reported that, in the wake of the leaks, terrorists have ramped up their use of sophisticated encryption technologies. Even criminal gangs have changed their methods, making it harder for intelligence agencies to interfere in activities such as human trafficking.

Russia, which recently indicated its intention to interfere in American elections, may be the biggest beneficiary of Snowden’s leak. Not only has Russian intelligence had access to the published documents, but they almost certainly have extracted additional information. In fact, a senior Russian security official confirmed as much in July: “Let’s be frank. Snowden did share intelligence. This is what security services do. If there’s a possibility to get information, they will get it.” Snowden may never have intended to become a collaborator with Russian intelligence, but his decision to eschew legal channels of oversight and flee punishment in the States by heading to Moscow — a plan arranged by the odious Julian Assange, founder of WikiLeaks — sounds less like the work of a whistleblower than like that of a defector, or a dupe.

Snowden should face consequences for his actions, like any other lawbreaker.

If Snowden is what he says he is — a whistleblower and a patriot — he will do what he should have done in 2013: surrender to the Justice Department and take his chances at trial, where he would have the opportunity to explain in full his actions and motives. Given the widespread sympathy he has garnered on both left and right, it’s hardly inconceivable that a trial would end with a hung jury and a favorable deal from the federal government.

With a few shameful exceptions, it has long been the policy of the Justice Department not to negotiate with fugitives. The Obama administration should not make an exception for Snowden just because he has the support of Susan Sarandon. In 2015, Sir John Sawyers, the former head of British intelligence service MI6, said that “Snowden threw a massive rock in the pool, and the ripples haven’t stopped yet.” That will be true for years to come. Edward Snowden is responsible for a grave security breach that has endangered America’s security. He should face consequences for his actions, like any other lawbreaker.


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