Le­niency for Snow­den?

Los Angeles Times - - OPINION -

When he an­nounced Tues­day that he would sign a bill end­ing the Na­tional Se­cu­rity Agency’s bulk col­lec­tion of Amer­i­cans’ tele­phone records and mak­ing other re­forms in sur­veil­lance laws, Pres­i­dent Obama praised Congress — and him­self.

“For the past 18 months, I have called for re­forms that bet­ter safe­guard the pri­vacy and civil lib­er­ties of the Amer­i­can peo­ple while en­sur­ing our na­tional se­cu­rity of­fi­cials re­tain tools im­por­tant to keep­ing Amer­i­cans safe,” Obama said. “That is why, to­day, I wel­come the Se­nate’s pas­sage of the USA Free­dom Act.”

Un­ac­knowl­edged by the pres­i­dent was the man who can fairly be called the ul­ti­mate au­thor of this leg­is­la­tion: former NSA con­trac­tor Ed­ward Snow­den, who has been charged with vi­o­lat­ing the Es­pi­onage Act and is now liv­ing in ex­ile in Rus­sia.

With­out Snow­den’s unau­tho­rized dis­clo­sures two years ago, nei­ther the pub­lic nor many mem­bers of Congress would have known that the govern­ment, act­ing un­der a strained in­ter­pre­ta­tion of the Pa­triot Act, was vac­u­um­ing up and stor­ing mil­lions of Amer­i­cans’ phone records. That pro­gram will end un­der the bill signed by Obama.

That leg­is­la­tion also im­poses a mea­sure of trans­parency on the For­eign In­tel­li­gence Sur­veil­lance Court, which se­cretly rat­i­fied the govern­ment’s im­plau­si­ble le­gal jus­ti­fi­ca­tion for the drag­net. (Last month, that ra- tionale was re­jected by a fed­eral ap­peals court in New York.) From now on, opin­ions of the sur­veil­lance court will be de­clas­si­fied “to the great­est ex­tent prac­ti­ca­ble.”

If the Amer­i­can peo­ple have Snow­den to thank for these re­forms — and they do — is it fair to pros­e­cute him for vi­o­lat­ing laws against the re­lease of clas­si­fied in­for­ma­tion? More than 167,000 Amer­i­cans say no and have signed a pe­ti­tion to the White House de­mand­ing that Obama grant him a “full, free, and ab­so­lute par­don.”

Yet there are se­ri­ous ar­gu­ments against a par­don. One is that, in a so­ci­ety of laws, some­one who en­gages in civil dis­obe­di­ence in a higher cause should be pre­pared to ac­cept the con­se­quences.

A stronger ob­jec­tion, in our view, is that Snow­den didn’t limit his dis­clo­sures to in­for­ma­tion about vi­o­la­tions of Amer­i­cans’ pri­vacy. He di­vulged other sen­si­tive in­for­ma­tion about tra­di­tional for­eign in­tel­li­gence ac­tiv­i­ties, in­clud­ing a doc­u­ment show­ing that the NSA had in­ter­cepted the com­mu­ni­ca­tions of then-Rus­sian Pres­i­dent Dmitry Medvedev dur­ing a Group of 20 sum­mit in Lon­don in 2009.

A par­don for Snow­den now would be pre­ma­ture. But if he were to re­turn to this coun­try to face the charges against him, the fact that he re­vealed the ex­is­tence of a pro­gram that has now been re­pu­di­ated by all three branches of govern­ment would con­sti­tute a strong ar­gu­ment for le­niency. Snow­den should come home and make that case.

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