In Interest of Justice, Clemency for Edward Snowden

      Developing story: The National Security Agency (NSA) is hard at work on a so-called quantum computer that could break nearly every kind of encryption used to protect digitized personal, business, and government records around the world.
       That’s how the Washington Post reported the news in a front-page story last week [Jan. 3], based not on an NSA press release — as if there were such a thing — but on documents provided by the NSA’s wayward former contractor, Edward Snowden.
       The $79.7 million research program could have “revolutionary implications” for the NSA’s intelligence gathering, the Post reported – not to mention the effects on privacy-protecting efforts of 21st century individuals, businesses, and governments. But the classified program was all hush-hush, except for speculation among physicists and computer scientists, until the Post’s Steven Rich and Barton Gellman mined some details from documents leaked by Snowden.
       Snowden, now in a sort of exile in Russia, has been a divisive figure ever since he unmasked himself as the source for stories in the British newspaper The Guardian and the Post on the NSA’s vacuuming up of bulk telephone records. The government has charged him with espionage, and some national security hawks call him a traitor. But many critics of broad government surveillance view him as a whistleblower, hero, and patriot. 
       The debate over Snowden has intensified since an NSA official suggested and the New York Times editorially endorsed the idea of granting him some sort of amnesty or clemency. The idea seems destined to go nowhere, at least not anytime soon, but Snowden’s contribution to understanding and debating the government’s overly broad surveillance programs warrants something other than long prison time or lifetime banishment.
       As the Times reported in a news story [Jan. 4], Richard Ledgett, head of an NSA task force assessing the damage from Snowden’s disclosures, floated the idea of a deal — amnesty for “assurances” against any more revelations — in an interview aired on the CBS program 60 Minutes [Dec. 15]. “My personal view is, yes, it’s worth having a conversation about,” said Ledgett, who is in line to become the secret agency’s second-in-command.
      The Times forcefully advocated clemency or a plea bargain in a long editorial [Jan. 2] that editorial page editor Andrew Rosenthal said had been in the making for weeks. The Times editorial listed “substantially reduced punishment” as one possible outcome for Snowden. Still, Rosenthal conceded to the
Times’s public editor Margaret Sullivan that the newspaper’s stance might be “beyond what is realistic.”
      Reaction over the next few days confirmed Rosenthal’s assessment. Even some critics of the intelligence establishment disagreed. Fred Kaplan, who writes on foreign policy for Slate, opened a long column [Jan. 3] by criticizing the government’s surveillance program but argued against amnesty for Snowden because of his disclosure of other, legitimate intelligence-gathering activities.
      Richard Clarke, the former White House counterterrorism adviser best known for his criticism of the government’s pre-9/11 failures on al Qaeda, also came down against amnesty for Snowden. “In any outcome here, he’s going to serve time,” Clarke, currently one of five members of a White House-appointed task force reviewing the surveillance program, told the Times’s White House correspondent Peter Baker.
      Baker said two other members of the group also voiced opposition to amnesty for Snowden, including Geoffrey Stone, a professor at the University of Chicago Law School and longtime critic of government secrecy. ‘“Even if Snowden’s benefit outweighed his costs, you don’t want to encourage people to make this decision for themselves,” Stone said. As for the White House and Justice Department, Baker said Ledgett’s suggestion had been met with “stony opposition.”
      In principle, the critics of any amnesty have a sound point, but principle often bows to reality in criminal justice. The NSA’s interest in cutting a deal with Snowden suggests that the agency sees a possible net gain in a plea bargain. And whatever the government’s interest, a just outcome in Snowden’s case must also take into account the real public benefit of his actions.
      The NSA’s collection of telephone records raises profound issues of how best to serve both national security and individual liberty, but those issues received far too little attention from policymakers in Congress or the executive branch before Snowden’s disclosures. Only now has it been learned that the super-secret Foreign Intelligence Surveillance Court upbraided the NSA for some operations of the program. And only now has there been full, public litigation over the legality of the program and a quasi-independent executive branch review of possible changes.
      Justice would not have been well served 40 years ago if the Pentagon Papers leaker Daniel Ellsberg had gone to prison. He was spared prison thanks to the illegal break-in at his psychiatrist’s office committed under President Richard M. Nixon, who himself was spared prison for political rather than legal reasons. In the decade since 9/11, there has been little accountability for executive branch officials and personnel for possible crimes in the so-called war on terror.
      Edward Snowden is a flawed figure, to be sure, guilty of deception and self-aggrandizement. But the public benefits of his actions outweigh the proven harm to the government’s intelligence-gathering interests. Snowden may or may not want to return to the United States, but a deal that limits his possible punishment would serve the ends of justice.