No pardon for Snowden

EDWARD Snowden, the former National Security Agency contractor who blew the cover off the federal government’s electronic surveillance programs three years ago, has his admirers. After the inevitably celebratory Oliver Stone film about him appears this weekend, he may have more. Whether Snowden deserves a presidential pardon, as human rights organisations are demanding, is a complicated question, however, to which President Barack Obama’s answer should continue to be “no”.

Snowden’s defenders don’t deny that he broke the law when he copied and kept 1.5 million classified documents. They argue, rather, that Snowden’s noble purposes, and the policy changes his “whistle-blowing” prompted, justified his actions. Specifically, he made the documents public through journalists, including reporters working for the Washington Post, enabling the American public to learn for the first time that the NSA was collecting domestic telephone “metadata” – information about the time of a call and the parties to it, but not its content – en masse with no case-by-case court approval. The program 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 Snowden.

The complication is that Snowden did more than that. 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 authorising it expires next year.) Far worse he also leaked details of 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 metadata program Snowden brought to light. In contrast, his revelations about the agency’s operations disrupted lawful intelligence-gathering, causing possibly “tremendous damage” to national security, according to a bipartisan report by the House Permanent Select Committee on Intelligence.

Ideally, Snowden would come home and hash out all of this before a jury of his peers. That would certainly be in the best tradition of civil disobedience, whose practitioners have always been willing to go to jail for their beliefs. He says this is unacceptable because US secrecy-protection statutes specifically prohibit him from claiming his higher purpose and positive impact as a defence – which is true, though it’s not clear how the law could allow that without creating a huge loophole for leakers. (Snowden hurt his own credibility as an avatar of freedom by accepting asylum from Russia’s Vladimir Putin.)

The second-best solution might be a bargain in which Snowden accepts a measure of criminal responsibility for his excesses and the US government offers a measure of leniency in recognition of his contributions. Neither party seems interested in that for now. An outright pardon, meanwhile, would strike the wrong balance.