Dec 29, 2020

The case for pardoning Edward Snowden

The case for pardoning Edward Snowden

Donald Trump's window of opportunity is closing.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 13 minutes.

Should Trump pardon Edward Snowden? We examine the arguments for and against a pardon. We’re skipping today’s reader question to give this edition some extra space. Also, an uplifting reader email in today’s “Have a nice day” section.

Screenshot of Edward Snowden on MSNBC in 2019.

What D.C. is talking about.

Pardoning Edward Snowden. In 2013, Snowden was working as a contractor for the National Security Agency (NSA) when he downloaded and stole approximately 1.5 million classified documents containing information on several U.S. intelligence spying programs. Snowden took those documents to journalists across the globe, who then published them for the world to see. The revelations were startling: the NSA was collecting and storing metadata — the time of phone calls and who was on them — of its own citizens. It was the largest leak in U.S. history, and it shed light on the most invasive domestic spying program in the country.

Snowden’s documents also revealed details of global spying programs run by the Five Eyes (Australia, Canada, New Zealand, United Kingdom and the U.S.), including one that was monitoring Germany’s leader Angela Merkel. The documents also uncovered PRISM, an internet spying program the NSA runs that allows it to access communications — including emails, video chats and photographs — from private companies like Google and Apple. Snowden turned over the documents to reporters, including Glenn Greenwald and Laura Poitras, who then published stories in The Washington Post and The Guardian, among others. Several documentaries have been made about his leaks, and many of his actions were documented in real-time in films like Citizenfour.

In 2013, the Justice Department charged Snowden with theft and two charges under the 1917 Espionage Act: “unauthorized communication of national defense information” and the “willful communication of classified communications intelligence information to an unauthorized person.” Snowden fled the U.S. shortly after revealing himself as the leaker, first to Hong Kong, where laws protected him from being extradited. After weeks out of public view, Snowden boarded a plane to Moscow, Russia, en route to South America where he was seeking asylum. The details of this trip are hotly contested, but Snowden’s U.S. passport was revoked either before or during his flight, leaving him stranded in Russia, where he has been ever since.

Snowden claims the U.S. government intended to strand him in Russia so they could frame him as a spy. Many U.S. intelligence officials allege he intended to end up there. Snowden has repeatedly applied for an extension of his residency in Russia, where he is out of reach of U.S. authorities, though he has also expressed a desire to come back to the U.S. In October, he was granted permanent residency rights in Russia. In 2017, he married Lindsay Mills. This week, he announced he became a father.

At the time, the leaks prompted the Obama administration to re-evaluate the intelligence programs and consider reforms, though privacy advocates contend not nearly enough has been done to implement changes. Some argue that transparency has increased but the actual function of the spying programs has not changed.

Yesterday, Tangle covered the pardons Trump has already signed off on. Earlier this month, we released a special Friday edition about the history of presidential pardons and how they work. For the last several weeks, allies of President Trump have been imploring him to pardon Snowden, and in August, Trump said he was considering it. Today, we’ll focus on the arguments around Snowden’s case.

What the right is saying.

It’s difficult to parse. Sen. Rand Paul (R-KY) and Rep. Matt Gaetz (R-FL) are Trump allies and have encouraged him to pardon Snowden. So has Roger Stone, the longtime Trump advisor who was recently pardoned himself. But they are in the minority on the right, as many Republicans — including some staunch Trump allies — are vehemently opposed to a pardon, and view Snowden as a traitor.

In The American Conservative, Brian Darling made the pro-Trump, pro-pardon case, arguing that Trump should “follow through and reward him [Snowden] for exposing the deep state’s overreach into the private affairs of all Americans.

“The D.C. establishment despises the idea of a pardon for Snowden,” Darling wrote. “Just look at former director of national intelligence and frequent Trump critic James Clapper as a case study in the establishment view. In March 2013, Clapper testified before the Senate Intelligence Committee. Senator Ron Wyden asked him, ‘Does the NSA collect any type of data at all on millions, or hundreds of millions of Americans?’ Clapper responded, ‘No sir, not wittingly…’ Three months after that testimony, The Guardian and the Washington Post released a series of stories about how the National Security Agency (NSA) had collected Americans’ phone and internet data under a different program. They’d received this tip because of information provided by Edward Snowden, who exposed the Clapper lie.

“The Snowden revelations led to a national debate over privacy versus security,” Darling added. “Before that, there hadn’t been much pushback from politicians over the breadth of the federal government’s expanded powers. Yet these revelations caused the nation to look inward on the issue of privacy and ask how much power citizens should allow to the federal government in the name of preventing terrorism. The disclosures raise the question: if Snowden hadn’t told us about these programs, who would have?”

In The Wall Street Journal, the editorial board asked if Snowden will “bamboozle” Trump.

“Donald Trump ran for President on wiping out the Islamic State and stopping China’s economic predations,” the board wrote. “Edward Snowden’s illegal disclosures weakened America’s defenses against foreign terrorists and boosted Beijing’s cyber-espionage against the U.S… In office Mr. Trump was stung repeatedly by grandiose government leakers who thought they stood above the democratic process. That description also fits Mr. Snowden, who never formally registered complaints about U.S. intelligence policies while contracting for the government, but has since made himself a celebrity with claims of moral righteousness… It would be a travesty if the President fell for this. The victims of Snowden-style treachery are ordinary Americans, not Mr. Trump’s ‘deep state’ foes. A pardon for Mr. Snowden’s behavior would invite more of it.”

Rich Lowry also opposed the pardon, writing that Snowden is “responsible for the most damaging classified leak in U.S. history.

“If Snowden wanted to be a genuine whistleblower, he could have pursued concerns about the NSA program through lawful avenues, instead of fleeing the country and purloining so many documents that authorities still can’t be sure how much he stole,” Lowry wrote. “The Snowden disclosures were much more wide-ranging than the NSA program, in fact so wide-ranging that it’s almost impossible to keep track… why did Snowden’s devotion to the Constitution require him to disclose details of how we spy on other countries, how we cooperate with Sweden and Norway to spy on Russia, or an NSA program called MasterMind to respond to cyberattacks?

“None of these programs or actions raise any constitutional issues whatsoever. Exposing them makes sense only as sheer nihilism—i.e., Snowden was in a position to steal the information, so why not take it and disclose it?—or as a calculated act of hostility to U.S. national security policy as such.”

What the left is saying.

The left is similarly divided. There is a lot of support for Snowden from progressive writers and the left-wing press, but there are no establishment Democrats speaking up about the pardon — or pushing for Snowden to be brought home. Even The Washington Post editorial board wrote in opposition to a Snowden pardon in 2016.

Glenn Greenwald, who helped Snowden publish the documents, wrote a blog post advocating his pardon earlier this month. Greenwald noted that aU.S. appellate court in September unanimously ruled that the NSA’s program of mass domestic surveillance was illegal... The court, and the broader public, knew about this illegal mass surveillance program created by the NSA only because Edward Snowden, while working inside that agency, discovered its existence and concluded in 2012 that the American public has the right [to] know about what was being secretly done to them and their privacy by their own government.

“Upon making the decision to blow the whistle on this security state illegality, Snowden delivered the documents relating to that program and other then-unknown systems of mass online surveillance not by dumping them indiscriminately on the internet or selling them or passing them to foreign governments, but by providing them to journalists (including myself),” Greenwald said. “That meant that Snowden himself never made a single document publicly available; every document that was reported was the result of decisions by newsrooms around the world that their publication would be in the public interest and would not endanger innocent people… Meanwhile, so many of the arguments against pardoning Snowden, and demanding his lifelong imprisonment or exile, come from the very security state operatives whose crimes he exposed. That includes John Brennan and James Clapper, along with their hawkish and neocon allies such as Susan Rice and Liz Cheney.”

In Jacobin, Chip Gibbons argued that Trump should pardon Snowden.

“As a result of these revelations, Congress passed legislation aimed at reining in the bulk collection of metadata (though the tepid ‘reforms’ ultimately failed to solve the problem),” Gibbons wrote. “The Ninth Circuit Court of Appeals found that same bulk metadata collection to be illegal, and likely unconstitutional. Had the program’s existence not been revealed, the Ninth Circuit would never have known of the existence of the illegal surveillance program. The journalists who revealed the program deservedly received a number of journalistic accolades, including a Pulitzer Prize. Their reporting would not have been possible, however, without the courage of Edward Snowden, the whistleblower who disclosed to them information about the programs. Given that these revelations were clearly in the public interest and resulted in legislative and judicial actions, one would expect that the man who made this possible would be lauded as a hero.”

In 2016, The Washington Post editorial board argued against a pardon for Snowden, instead saying a “bargain” where Snowden accepts a measure of criminal responsibility in exchange for a more lenient punishment may suffice. The paper’s board has not chimed in as speculation around a pardon has risen this time around. The board argued that the NSA program collecting telephone data on Americans “was a stretch, if not an outright violation, of federal surveillance law, and posed risks to privacy. Congress and the president eventually responded with corrective legislation. It’s fair to say we owe these necessary reforms to Mr. Snowden.

“The complication is that Mr. Snowden did more than that,” the board wrote. “He also pilfered, and leaked, information about a separate overseas NSA Internet-monitoring program, PRISM, that was both clearly legal and not clearly threatening to privacy. (It was also not permanent; the law authorizing it expires next year.) Worse — far worse — he also leaked details of basically defensible international intelligence operations: cooperation with Scandinavian services against Russia; spying on the wife of an Osama bin Laden associate; and certain offensive cyber operations in China. No specific harm, actual or attempted, to any individual American was ever shown to have resulted from the NSA telephone metadata program Mr. Snowden brought to light. In contrast, his revelations about the agency’s international operations disrupted lawful intelligence-gathering, causing possibly ‘tremendous damage’ to national security, according to a unanimous, bipartisan report by the House Permanent Select Committee on Intelligence. What higher cause did that serve?”

My take.

We’re living in a bizarre world, one where a president who has been openly antagonistic to press freedom and whistleblowers now seems to represent the last chance to pardon the most prolific intelligence operations leaker in American history. One where “liberals” who rail against FBI and CIA abuses — and are openly skeptical if not antagonistic toward law enforcement — have now rallied around former intelligence leaders like James Clapper and John Brennan in the cause of opposing Trump’s potential pardon. And a world where, as Glenn Greenwald pointed out, Rand Paul, Tulsi Gabbard, the ACLU, Twitter CEO Jack Dorsey, The New York Times editorial board, Thomas Massie and Justin Amash are all calling for the same thing: to pardon Snowden.

And they’re all right.

First, the hypocrisy of the loudest voices opposing this pardon cannot be overstated. Clapper, who has become a liberal resistance hero for sending mean tweets about Trump, lied under oath to the Senate and the American people. He told the entire country, and Congress, that the NSA wasn’t spying on Americans. After his lies were exposed, which would result in perjury charges for all but a select few Americans, Clapper served three more years as Director of National Intelligence and now appears regularly on CNN as a “political analyst.”

The Democrats who purport to have liberal values, including the unambiguous defense of whistleblowers and a free press, are now silent. The same Democrats who insist we must have law enforcement that’s accountable to the American public are now turning their backs on someone who has done more to provide that accountability than practically anyone in the last decade. Rep. Tulsi Gabbard is the lone Democrat advocating for a pardon for Snowden, despite the fact that high-ranking Senate Democrats like Dick Durbin have celebrated the reforms implemented in the wake of his leaks.

The Senate Republicans imploring Trump not to pardon Snowden are similarly hypocritical. They’ve pounded the table about the “deep state” for four years, an exaggerated but real apparatus of intelligence officials who operate out of sight to undermine politicians or U.S. policies they don’t like with leaks, espionage and tradecraft. Edward Snowden is, perhaps singularly, the greatest opponent of said “deep state.” If these Senate Republicans actually cared about that, they would advocate for him now.

And what about The Washington Post? The same paper that won a Pulitzer Prize for literally reporting out the documents Snowden gave them has publicly advocated against a pardon for him. Will The Post return its Pulitizer? Would it hang one of its own reporters out to dry were they to be charged with “espionage” after reporting on the leaks? The paper’s divisions between opinion and news couldn’t be more evident, and the 2016 editorial board should be ashamed of its position.

Should Snowden come home and fight for his innocence, as former Obama officials like Susan Rice have advised? It’s not remotely possible without a pardon or his charges changing. Because the Obama administration decided to prosecute him under the Espionage Act, an archaic and draconian law, Snowden can’t face a fair trial, as even The Washington Post conceded in its editorial opposing a pardon. He has already admitted to turning the documents over to reporters, and his intent in doing so is irrelevant under the Espionage Act. He wouldn’t even be able to explain his justification to a courtroom — as Daniel Ellsburg, the man behind the Pentagon Papers, found out in the 1970s.

Is Snowden a Russian spy? Of course not. He sought asylum in 24 countries and his intent and attempts to get to South America to reside in Bolivia or Ecuador are well-documented. The U.S. administration, led by Joe Biden, stymied him at every turn. Of the dozen or so countries Snowden could have found a safe haven in, no reasonable person would suspect he would choose Russia — and he didn’t. The U.S. ensured he would be stuck there, and he’s made the most of it since. Former deputy NSA director Chris Inglis has now conceded as much, saying “I don’t think [Snowden] was in the employ of the Chinese or the Russians. I don’t see any evidence that would indicate that.”

Did Snowden endanger Americans? Not according to the NSA. It has provided no evidence — zero — that Snowden turned any information over to Russia or China. Furthermore, the NSA hasn’t even been able to prove that its massive spying program stopped any terrorist attacks at all. For a long time, the NSA claimed its spying powers had been used to stymie hundreds of terrorist attacks, then dozens, and then one single case. And earlier this year, a judge ruled the NSA program was irrelevant to the prosecution in that single case. The same federal judge who said the program was illegal asked the government to provide evidence that it led to the arrest of a single terrorism suspect, and the government couldn’t do it.

Why didn’t Snowden just use the proper channels? According to him, he tried to. More than 10 times. But he was also a contractor, not a federal government employee, meaning he wasn’t covered by the same whistleblower protections that others would have been. It’s also worth remembering that all of this went down when Barack Obama was president, and he led one of the most aggressive campaigns against leakers in U.S. history. Obama was not a champion of the free press. He spied on journalists, charged every leaker he could find, and — as Snowden’s case demonstrates — was hellbent on throwing the book at anyone who undermined the administration. How could Snowden ever think he had a legitimate path to tell the world what he knew?

At the very worst, what the federal government has demonstrated is evidence that Snowden exposed valuable intelligence programs and made it more difficult to spy on our enemies (and in some cases, our allies). But there’s no evidence those challenges haven’t been overcome. And even if they’re real, there’s a legitimate and compelling case that the tradeoff — exposing that Americans were being spied on by our own agencies and pushing for better internet privacy laws — was worth it.

To recap: Snowden uncovered a massive domestic spying program that infringed on the rights of Americans, exposed the lies of our most powerful intelligence officers, had little or no chance of being protected by whistleblower laws, fled the country, was charged under a 100-year-old draconian espionage law to ensure he spent decades in prison, has spent seven years in exile in Russia, has been vindicated by federal courts in that the program he exposed was illegal and was not making us any safer, and now wants to come back to the U.S. and raise his family here.

Edward Snowden doesn’t have to be a hero, but he’s certainly not a traitor. He executed one of the most responsible and important leaks in U.S. history by turning over documents to the best reporters in the world and allowing them to use their infrastructure and experience to decide what was of public interest and what could be reported safely. Of the 1.5 million documents he’s said to have obtained, approximately 7,000 (that’s 0.46%) have been made public — an indication of the overwhelming discretion Snowden and those reporters employed.

So far, the vast majority of Donald Trump’s pardons have been reserved for his political allies, swampy politicians who abused the public trust, war criminals, and police officers with track records of excessive force. It’d be nice if he balanced the scales a bit with a pardon for someone who actually acted in the public interest and might deserve it.

Don’t forget.

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