Amnesty for Snowden?

The public is divided on the issue:


A NYT editorial proposing leniency, if not clemency, for Edward Snowden has set off a chorus of support and condemnation throughout the blogosphere. Shafer points out that the Grey Lady’s editors are not the first to float this balloon:

You could ridicule the Times editorial for wild, wishful thinking had Rick Ledgett, a top NSA official in charge of the Snowden damage-assessment task force, not also entertained the idea of amnesty on 60 Minutes three weeks ago. “It’s worth having a conversation about,” said Ledgett, who is expected to be the agency’s next No. 2 official. “I would need assurances that the remainder of the data could be secured and my bar for those assurances would be very high.” Ledgett insisted his statement represented a “personal view” — as if top NSA officials expecting promotions are allowed to share their “personal views” about national security on national TV. Was he expressing the agency’s powerlessness to contain future leaks of the 1.7 million documents Snowden’s now believed to have stolen, and trial ballooning the possibility of a deal, or was he gaming Snowden, as I conjectured at the time?

Ed Morrissey argues that the editorial presents “a false binary choice” and that Snowden had other options for exposing the NSA, such as presenting evidence to members of Congress:

Senators Ron Wyden and Rand Paul were well-known opponents of domestic surveillance; why not go to them, or anyone else first before taking the cache elsewhere, especially to China and then Russia? The fact that the Times’ editors never even address that channel shows how weak their argument is — which is why they don’t really try to make the amnesty argument in the end.

There is one argument for offering amnesty, which is to secure what’s left unexposed of the cache.

If it can be established that the cache is secure and no one else has the data, it might be worth a trade in purely practical terms. It’s difficult to see how that could be established, though, especially with Snowden’s travels taking him through two of the less-friendly states to American security concerns. Otherwise, a deal would suggest to people still within secured-data environments that stealing a little data is dangerous, but stealing massive amounts of it might be their ticket to fame and fortune. It’s a bad precedent to set, and we’d be better off spending our time improving our legitimate whistleblowing channels and hardening security.

Max Boot calls Snowden a traitor, not a whistleblower, saying, “the only kind of plea bargain I would like to see offered to Snowden is one that allows him to serve life in a maximum-security prison rather than face the death penalty for his treason”:

Even if you think that the NSA’s collection programs are excessive, it is hard to make the case that sharing the most vital secrets of the U.S. government with the news media–and probably hostile foreign governments in Beijing and Moscow, although the Times doesn’t mention this inconvenient probability–is the way to address the problem. Snowden now claims that he tried to notify a couple of superiors about his concerns; the NSA denies it. Whatever the case, there is no evidence he tried to notify the NSA’s inspector general, the Foreign Intelligence Surveillance Court, or the intelligence committees of Congress. No doubt this is precisely because he knew that all of the activities he disliked were fully authorized by all three branches of government. What we have here is not a case of “whistle-blowing,” as the Times disingenuously claims, but a case of a young, arrogant, headstrong techie with a libertarian bent and a taste for fame who has taken upon himself the responsibility of deciding which intelligence programs the U.S. government may carry out and which it may not. A true whistleblower, like Daniel Ellsberg, stays to face the consequences of his actions–he does not flee to hostile foreign capitals.

Mataconis responds to Boot:

There are at least a few flaws in Boot’s argument. First of all, as the Times notes, there still isn’t any evidence that the surveillance programs that Snowden revealed have een at all helpful in stopping any terrorist cast, or that they could have stopped past terrorism like the 9/11 attacks. Second, while Boot quite apparently does not agree. there are serious questions about whether or not the actions that the N.S.A is engaging in are Constitutional, as Judge Richard Leon has indicated, and without Snowden’s public revelations there would be no Court in nation engaging in a public review of what the agency is doing. Third, as the Times notes, there is at least a plausible argument for why Snowden would not feel safe staying in the United States after the information he had obtained was made public. Finally, while there remain several reasons to distrust Snowden’s judgment, such as his decisions to flea to places like Hong Kong and Russia, there are even more reasons to distrust the government acting in secret in our name and mining vast arrays of data for information whenever they feel justified in doing so. The fact that the American people had no idea that any of this was happening is something that should bother any American, and the response that we can trust the government not to misuse all this data ignores decades of history showing misconduct by the Executive Branch, law enforcement, and Intelligence Agencies.

Conor dismisses the idea that clemency for Snowden would set a precedent for future leakers:

The concepts of pardon and clemency are part our system precisely because there are instances when applying rules we’ve generally decided upon would be unjust and counterproductive. They are meant to be used judiciously, on an ad hoc basis, in what are clearly exceptional circumstances. Snowden’s leak meets those tests. Urging clemency for Snowden is not a radical case against our existing system of rules—it is an acknowledgment that, like all rules, ours are imperfect. One of the finest presidents, George Washington, pardoned farmers who took up arms against the federal government (!) to protest a tax on whiskey. He wouldn’t have granted those pardons had he thought that he was making a radical case against the legitimacy of the U.S. government or setting a precedent for anti-tax insurrections. And it is difficult to argue that any such precedent was set, even at the dawn of the federal republic when norms were still being established. Today, it is even more difficult to imagine that a pardon for Snowden, or one of the lesser forms of forgiveness the Times advocates, would cause other federal employees to imagine that they’d avoid punishment if, say, they made public the identities of American spies abroad or secret codes from the U.S. nuclear program.