For the last three years, one month, and seven days, Edward Snowden has been living in exile from the United States. On May 20th, 2013, he boarded a flight from Hawaii to Hong Kong after setting in motion the most powerful public act of whistleblowing in US history. In the months that followed, the public learned about programs collecting data on every phone call in the United States, attacking private networks run by Google and Yahoo, and hacking into the web’s advertising networks to turn them into tools of surveillance. In the weeks that followed, Snowden left Hong Kong for Russia, fleeing forced extradition by the US and its allies. He's remained there ever since.
But in the months ahead, there will be a unique chance to change that. An article in this week’s New York Magazine looks at Snowden’s life in exile and comes away with a unique insight into Snowden’s clemency plan. As Snowden’s central counsel, the ACLU’s Ben Wizner, puts it: "We’re going to make a very strong case between now and the end of this administration that this is one of those rare cases for which the pardon power exists."
A unique chance for Snowden
The implicit point is that if Snowden is going to come home, his best chance is a presidential pardon, which is unlikely to come from Hillary Clinton or Donald Trump. The final days of Obama’s final term are the best chance Snowden has, which gives Wizner and his team a little more than six months to make their case.
Like many such campaigns, it’s a long shot. President Obama has not said anything over the past three years to suggest he’s interested in pardoning Snowden, and it would be a significant break from his national security policy thus far. It would also severely alienate the intelligence community for years to come.
But there’s something more important than political blowback. Pardoning Snowden is the right thing to do, and if you care about a free and secure internet, you should support it. Snowden risked his life to perform one of the most pivotal public disclosures of our time, shedding light on surveillance systems that have grown far beyond the reach of democratic accountability. The documents he published — the source of his crime — have brought about profound changes in the way we build technology and communicate online. His continued exile is shameful, and ending it is a unique chance to reclaim the legacy of a president who has often failed to live up to his own promises of transparency.
Clemency is particularly important because it will be impossible to defend Snowden’s leaks as a public service in court. He is facing charges under the Espionage Act, which makes no distinction between delivering classified files to journalists and delivering the same files to a foreign power. For the first 80 years of its life, it was used almost entirely to prosecute spies. (Daniel Ellsberg of the Pentagon Papers was a rare exception.) The argument Wizner is making now — that Snowden’s disclosures were in the public interest, and strengthened the nation rather than weakening it — couldn’t be made in the context of an Espionage Act trial. As long as classified documents were disclosed, which they indisputably were, then all other questions are moot.
"This is one of those rare cases for which the pardon power exists."
For Snowden’s critics, that’s as it should be. Secrecy plays a vital role in our intelligence agencies, safeguarding crucial information and saving lives. Without some means of enforcing it, we would be unable to perform the most basic functions of nationhood. There’s no doubt that Snowden’s disclosures disrupted intelligence collection, inflicting a real cost to the nation that should not be dismissed.
But the same secrecy that protects intelligence agencies has become a political tool to avoid accountability for their actions. Three months before the Snowden disclosures, Congress asked Director of National Intelligence James Clapper whether the NSA was conducting any bulk surveillance of US citizens. Clapper lied, saying no such programs existed. Other intelligence agencies have shown similar impunity, even spying on the Senate offices investigating them. Neither agency has faced any repercussions for their actions.
As a result of that impunity, it’s been left to whistleblowers to alert the public when a program oversteps the limits of the constitution. Snowden was not the first. Thomas Drake, William Binney, Kirk Weibe and Ed Loomis all spoke out against bulk collection from within the NSA and, when their objections were ignored, from outside the agency. They did not go so far as leaking classified documents, but they still faced severe legal threats as a result of their work in the public interest. Thomas Drake was charged with ten violations of the Espionage Act, charges that were only dropped after a police raid on his home and a wildly destructive prosecution. Other whistleblowers like Thomas Tamm have been barred from practicing law or faced years of retaliatory investigations for charges that never materialized.
As President Obama reaches the end of his second term, those prosecutions are a central part of his legacy, and a shameful one. The president has prosecuted more whistleblowers under the Espionage Act than all presidents before him combined. His Justice Department has vastly expanded the scope of the law, turning it from a weapon against the nation’s enemies to one that’s pointed against its own citizens. The result will be less scrutiny of the nation’s most powerful agencies, and fewer forces to keep them in check.
With Snowden’s push for clemency, the president has a chance to complicate that legacy and begin to undo it. It’s the last chance he’ll have.