If you wanted to make a case for giving Edward Snowden immunity from prosecution for the crime of leaking classified material, you wouldn’t have a very difficult time. In short, it would amount to this: Snowden revealed the existence of a possibly un-Constitutional program to which millions of Americans have responded with outrage. In addition, there was little hope that the existence of the program would have been otherwise revealed.
This last point is critical. Three things seem especially relevant. First, members of Congress have known about the NSA program for years, but that “oversight” was not enough to ensure that the public learned about what the NSA was doing. Dispiritingly, the Congressional route had run its course.
Second, the judicial process was closed as well. The NSA’s domestic surveillance program was overseen, in the judicial branch, by a secret court established by the Foreign Intelligence Surveillance Act (FISA). That process has been much maligned and for good reason. For now let’s just focus on the fact that its decisions were classified. Additionally, traditional Article III courts – i.e. the sort that present testimony in public view – refused to hear challenges to any suspected intelligence program.
The Catch-22 was that, since such programs were classified, plaintiffs could not prove that they had been spied on and that they therefore had standing to challenge. Of course, we now know that virtually all of us have been subjected to some level of surveillance, but before Mr. Snowden’s revelations the courts could not substantiate that claim. Now they can and we’ve already seen one court rule the program legal while another has ruled it illegal. The appellate process can now begin – thanks to Mr. Snowden.
Third, we should all remember what happened on March 12, 2013. During a congressional hearing, Sen. Ron Wyden asked James Clapper, the Director of National Intelligence, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
It now seems that Sen. Wyden knew that he was setting a trap for Mr. Clapper. As a member of the Senate Intelligence Committee, the senator already knew about the NSA programs and had, in fact, been raising the alarm that something fishy was going on. Unfortunately, because everything was classified, Mr. Wyden couldn’t go into detail – this was his chance to get a critical piece of information into the public record.
It didn’t go that way, of course, because Mr. Clapper simply lied: “No sir…not wittingly.” There was nowhere for Wyden to go – he could either accept that answer and move on or challenge Mr. Clapper’s statement as a lie and therefore reveal classified information himself. He did the former; perhaps he should have done the latter. But the point is this: if an informed member of Congress asking a knowledgable member of the administration a pointed question during sworn Congressional testimony was not enough to pry lose the facts, then Edward Snowden was justified in believing that there were no legal avenues through which the public might learn what was happening.
The public – that is, you and me – had been systematically shut out of the process. In a democracy, that’s a dangerous game to play.
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So why isn’t that the end of it? Why shouldn’t Mr. Snowden be given immunity?
If you wanted to make a case against it, it might go something like this: Mr. Snowden broke the law and violated his contractual agreement with the government in order to reveal a program that had received the endorsement of all three branches of government. The facts, as they are presented above, are unsettling. But they also reveal that the Congress, the White House, and the courts had signed off on what the NSA was doing. Mr. Snowden – unelected, un-appointed, and single handedly – undid that.
In addition, he fled the country. The United States has a proud tradition of civil disobedience, but you could argue that Mr. Snowden stepped outside of that tradition by not submitting himself to the judgement of his peers. Martin Luther King, Jr. violated the law in pursuit of justice when he engaged in protests. He was arrested and his letter from a Birmingham jail became a piece of the American cannon. Similarly, Daniel Ellsberg risked everything when he released the Pentagon Papers. But he surrendered to the authorities – in Boston, no less – and issued the following statement:
I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.
Moral courage is at the heart of what makes civil disobedience so powerful; by fleeing the country, Edward Snowden has stripped his actions of that force. A deficit which is only magnified by popping up in China and Russia while setting himself up as a champion of accountability and transparency.
If you want to find reasons to celebrate Snowden, they are plentiful. But if you want to find reasons to condemn him, they’re not that hard to find either. Faced with that complexity, a lot of Americans have retreated into their idealogical corners.
Here’s my take on how to cut through it:
First, Mr. Snowden should be granted whistle-blower status for his revelation that the NSA is spying on American communications. Whether or not you agree with the wisdom of that program, it is difficult to deny that it strains the boundaries laid down by the Constitution. Likewise, what has passed for Congressional and judicial oversight so far has been repulsive: nothing good can grow in the shadows and Mr. Snowden should be commended for bringing in some much-needed light.
If, after the intelligence community has been forced to give an open defense of what they wish to do, the judgement of the country is to go along with it, then so be it. But in a democracy, process counts for as much as outcomes.
However, Mr. Snowden did a lot more than reveal a domestic surveillance program. In the deluge of documents handed over to reporter Glenn Greenwald, Mr. Snowden also revealed details about American operations in Europe and China. Those programs – amounting to the overseas collection of intelligence – are exactly what we expect our spy agencies to do. If you believe that the US should not engage in foreign espionage, then you can make that argument in the public square; what you cannot do is reveal damaging information about perfectly legal and legitimate programs. That is, and should be, a crime. For those crimes, Mr. Snowden should be pursued, prosecuted, and (if convicted) imprisoned.
For his offer to help Brazil counteract American intelligence efforts, Mr. Snowden should be publicly condemned.
I know it’s a difficult hair to split. It won’t satisfy anyone who insists on seeing Edward Snowden as a hero and it will do little to gain Mr. Snowden’s cooperation; he’s looking at serious prison time even with the limited immunity I am proposing here. What it would do, however, is help the United States establish the right precedent: that whistle-blowing is a commendable but precarious action, one which should be taken with the utmost care.
For the administration, the major stumbling block in pursuing this strategy is that it would require them to publicly differentiate between their spying activities overseas (perfectly legal) and their spying activities in the United States (dubiously legal or possibly improper). Such a distinction would give ammunition to the Administration’s critics – a difficult step for any organization to take.
Here’s another thought for how the administration could put the country back on the path towards checks and balances: James Clapper lied to Congress under oath – perhaps he should be punished for it. (Senator Rand Paul made an interesting suggestion that perhaps Mr. Clapper and Mr. Snowden could share a prison cell. That sounds like a good idea.)
Follow Pedro on Twitter @IamPedroA.
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