2 January 2014
NY Times: Edward Snowden Clemency
Edward Snowden, Whistle-Blower
By THE EDITORIAL BOARD
Published: January 1, 2014
Seven months ago, the world began to learn the vast scope of the National
Security Agencys 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 agencys 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 agencys
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
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.) Thats almost certainly because the agency
and its leaders dont consider these collection programs to be an abuse
and would never have acted on Mr. Snowdens 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 agencys 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 nations 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. Thats 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 its why
President Obama should tell his aides to begin finding a way to end Mr.
Snowdens vilification and give him an incentive to return home.