Edward Snowden is a thief cultivated by the Russians. Now Panic.

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After the recent Q&A: My U-turn on Edward Snowden

Those of you who know me, know that I am usually quite ready to defend Edward Snowden.

You may have been reading this blog or listening to me going on about how I believed he did something brave and honourable and that he should be applauded and not punished. You may have read about my belief that the act of applying for, and being granted, asylum in Russia says nothing about Edward Snowden’s true motivations and everything about how the US and other nations handled the situation.

People who follow me on Twitter or Facebook, whether they liked it or not, have watched me share material about the potentially unlawful practices of the NSA and the British GCHQ and have witnessed my indignation at governments like German chancellor Merkel’s administration for keeping still instead of standing up to the US.

You may have heard and read me call for Mr Snowden’s protection, his pardon, you may have witnessed me going on about his right to asylum, condemning those who would deprive him of that right and those who would not help him.

I believed in Snowden from the start.

But not anymore.

I was around for that live Q&A with Snowden this week, and I wasn’t impressed.

It has caused me to reconsider what his opponents have to say and I think I now see who the real Edward Snowden is at last.

And based on that evidence, Edward Joseph Snowden, former employee of NSA contractor Booz Allen Hamilton, I say to thee: thou art a villain. Thou art a rogue, a knave, a traitor, guilty of the most heinous crimes.

Yes, I finally see it!

Mike Rogers, chairman of the US House Intelligence Committee, has opened my eyes to your knavery!

I believe there is a reason, Edward Snowden, for why you “ended up in the hands, the loving arms, of an agent in Moscow,” and for why Russia has now hinted that it will extend your asylum.

It doesn’t matter that I have no idea who that agent with the loving arms is supposed to be or what the hell Mr Rogers is talking about, or that he has “offered no firm evidence to back his theory”.

It makes no difference either, that the FBI still thinks you acted on your own and that Richard Ledgett, the senior NSA guy investigating the leaks, agrees with them.

Clearly, the things you did, Edward Snowden, were “beyond your technical capabilities”.

Never mind that – months later – the NSA is still stumped about exactly how much you took because you covered your tracks too well. That has nothing to do with your capabilities; you “had some help,” didn’t you, when you “stole things that had nothing to do with privacy.”

Diane Feinstein, defender of the NSA and my new favourite person in the world, says the same thing: you may well have had help. She doesn’t really know. No matter.

So she cannot prove it. Who cares?

If one does not have the slightest evidence to support a claim but does not believe the evidence supporting the opposite claim, one might as well assume that one is right.

Especially as one’s claims are lapped up so readily by one’s friends in the media.

After all, someone who would shamefully abandon his girlfriend – a grown woman in the 21st century – to fend for herself and abscond first to China and then to Russia must be capable of all sorts of evil acts!

You are a weed, Edward Snowden, a pest, a tumour, planted and then “cultivated by a foreign power to do what [you] did.”

Undoubtedly, it must have happened during your time abroad.

After all, living in Switzerland, that homeland of rich racists, must have made you appreciate the perks of some good old-fashioned Communism.

Was it there that the seed of treason was planted inside you, Edward?

The seed that then grew and turned you into a fully-fledged double-crosser ready to sell your country and manipulate your colleagues into giving you their passwords?

Oh thou master of manipulation, no wonder I fell for your ruse!

I now name thee thief!

I name thee stealer of “information that had to do with how [the US] operate[s] overseas to collect information to keep Americans safe”.

And I turn my back on thee!

Proper knaves

No, of course I don’t.

Obviously, I am not being serious.

And I don’t believe I had you, dear readers, for a second.

After all, these latest allegations that Edward Snowden “may have had help” from Russia when taking away the NSA’s toys are no less unfounded or any less ridiculous than previous, similar ones.

They are, in fact, more so.

Justin King calls them “a bi-partisan effort to scare the American people into ending their opposition to the surveillance state”.

He is not wrong. It cannot be a coincidence that this kind of Snowden-bashing gained new momentum in the wake of Mr Obama’s speech last week.

Having tried, I can tell you though, that it is very, very difficult for any reasonable person to uphold claims that Mr Snowden is a Russian (or any other nation’s) asset.

Allegations that Mr Snowden was or is working for Russia’s (or any other) government simply “won’t stick” and I am guessing one of the many reasons for that is that not even the spooks themselves believe them:

“Other US security officials told Reuters as recently as last week that the United States had no evidence that Snowden had any confederates who assisted him or guided him about what National Security Agency materials to hack or how to do so.”

Now, the spooks though…. They seem to have quite a lot they would like not to become known, don’t they?

On Tuesday, the Guardian reported that “[t]he Justice Department is withholding documents related to the bulk collection of Americans’ data from a transparency lawsuit launched by the American Civil Liberties Union.”

The decision “has raised suspicions within the ACLU that the government continues to hide bulk surveillance activities from the public.” Other, different bulk collection activities than those that we (courtesy of Mr Snowden) already know about, that is.

And here’s a laugh: “The government cannot [even] specify the total number of documents withheld in full […] because the number itself is classified.”

So you cannot get information on the number of classified documents that are being withheld in court because the number of documents itself is classified information. Wow, that must be quite some information! What could we possibly, I wonder, infer from a mere number? Except perhaps that there is far too much indiscriminate surveillance going on.

Not that we didn’t know that already.

Effectively, though, “the government [still] appears to be hiding the ball.”

And make no mistake: “We can’t have the public debate that President Obama wants without the facts that his agencies are hiding.”

Now consider who is hiding what here (and who is making unfounded allegations against whom and who is calling for whose assassination) and then ask yourselves who the real knaves are in this drama.

While you’re at it, also take into account that Human Rights Watch in its annual report for 2014 criticizes mass surveillance for various reasons, warning that it could “could have a disastrous long-term effect on internet freedom and free speech.”

Free speech – now here’s a thing: Edward Snowden has provided us with the information we need to have a free and informed debate. The US government says it welcomes this debate.

Yet, they are still withholding documents vital for that debate and are calling for the prosecution of the man who enabled that debate. Most recently, they have called for him to enter a guilty plea. More on that in a moment.

Seeing that they cannot – for the moment – lure him back or get their hands on him by legal means, they are clearly and blatantly trying to discredit him, failing at every turn to base their allegations on any solid evidence.

To me, the shenanigans of Ms Feinstein, Mr Rogers and Mr McCaul display the same sort of desperation and frustration so sickeningly evident in the spooks’ murderous hatred for Mr Snowden.

Whistleblower

Now, who are we to believe? The man who, to all intents and purposes and according to all available evidence, is a whistleblower, or the people with questionable motives and worryingly skewered ideas of morality who are trying to discredit, incarcerate, murder him?

For one last hint as to the answer consider what Human Rights Watch has to say on the distinction between the content of calls and emails and metadata that the US government and the NSA keep using to justify their practices as “not spying”:

“To assume that only the listening in, not the collection part of surveillance constituted an intrusion of privacy was “a fallacy”. Imagine the government putting a video camera in your bedroom and saying ‘don’t worry, the feed will only go into a government computer, which we won’t look at unless we have reason to believe that wrongdoing is taking place’. Would you feel your privacy is being respected? Of course not. But that’s exactly what the government is doing.”

Would you trust a Peeping Tom when he told you that everything he was doing was perfectly within the law? And that the person warning you that he was outside your window every night looking in needed to be brought in front of a judge for doing so?

Surely not.

Unfounded allegations and legally questionable programmes

And I am sorry Ms Feinstein, Mr McCaul, Mr Rogers, but the case you are making against Mr Snowden won’t stand. It cannot be upheld because there is no evidence that your allegations that he had outside help when outsmarting the NSA have any basis in fact.

There is, however, ample evidence that you and your associates are not as trustworthy as you profess to be.

Which, of course, explains why you keep banging on so loudly about Mr Snowden and Russia: people who are not quite sure of themselves are often hide their insecurity behind a veil of noise.

And you have every reason, don’t you, especially this week, to feel a little bit insecure about yourselves? And particularly about that bulk phone record collection programme under section 215 of the Patriot Act that you like to defend so much?

After all, “[o]n Thursday, the executive branch’s privacy watchdog, the Privacy and Civil Liberties Oversight Board, became the latest independent group to have looked into the […] practice of collecting citizens’ phone data in bulk – and to call for it to stop,” concluding that “that bulk collection under section 215 of the Patriot Act constituted an invasion of privacy with insufficient oversight and negligible national security benefits.”

Here is a crucial quote from the report which can be found in full here:

“The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the board recommends that the government end the program.”

The report concludes that “the NSA’s collection of every US phone record on a daily basis violates the legal restrictions of the statute cited to authorize it, section 215 of the Patriot Act.”

And there are many people who agree with this. The Guardian has a list of quotes here.

Some of my personal favourites call the programme a “potential risks to public trust, personal privacy, and civil liberty”, an “excessive”, “indiscriminate” and “arbitrary invasion” of “incredibly troubling” Orwellian scope, and point out that “[t]he government has not made a compelling case that this program is an effective counter-terrorism tool” because “there is no evidence that the […] program helped to thwart dozens or even several terrorist plots” and thus no “legitimate explanation [exists] for tracking the numbers, locations, times and duration of the calls of every American.”

Crucially, “[n]ot only did the board conclude that the bulk surveillance was a threat to constitutional liberties, it could not find “a single instance” in which the program “made a concrete difference in the outcome of a terrorism investigation”.”

This goes against Barack Obama’s acceptance of “the intelligence community’s highly contested rationale that bulk phone records collection [is] necessary in order for the government to detect domestic connections to terrorism.

As such, the Privacy and Civil Liberties Oversight Board’s report sounds a lot more promising than most of what Mr Obama said in his speech last week.

I agree with Jameel Jaffer of the ACLU that “[t]he board’s report makes even clearer that the government’s surveillance policies, as well as our system of oversight, are in need of far-reaching reform.

So. There is no evidence that this programme is successful. By contrast, there is evidence that bulk surveillance is “a threat to constitutional liberties.”

This is something we all needed to know about and there is no reason, or evidence, to believe that Mr Snowden disclosed information about this programme for any other reason than because he was troubled by what he saw.

A study in scarlet thread

Which brings me back to the repeated allegations that he is a Russian spy.

Note that every report on these allegations – be the reporting media government friendly or no – has to concede that neither Ms Feinstein, nor Mr McCaul, nor Mr Rogers has given any evidence to support their claim.

“Provided no evidence.”

That sentence runs like a bright red – dare I say scarlet – thread through every article and commentary on the story.

Feel free to check this here and here and even with that mother of all Republican party extensions Fox News.

So whereas Mr Snowden’s motives continue to seem sound rather than dodgy, and while his decision to reveal these mass surveillance programmes seems more vindicated each day, what about those of the NSA and their minions?

Ah, here is the hitch, you see?

Death threats

Because there are some very questionable characters among them.

Now, in fairness, Mr Snowden in the recent Q&A made it clear that “the people at the working level at the NSA, CIA, or any other member of the IC are not out to get [us]. They’re good people trying to do the right thing.”

“The people you need to watch out for,” he stressed, “are the unaccountable senior officials authorizing these unconstitutional programs.”

And they have some very scary things to say on the subject of what they would like to do to Mr Snowden.

Kill him, preferably.

Which is precisely the kind of nonsense that seriously makes me doubt that it would be a good idea for Mr Snowden to consider any kind of plea bargain, even though the US Attorney General Eric Holder has once again put that on the table this week – keeping clemency firmly off that same table mind you: “We’ve always indicated that the notion of clemency isn’t something that we were willing to consider. Instead, were he coming back to the U.S. to enter a plea, we would engage with his lawyers.”

Court case

The idea behind the notion of a plea bargain – apart from the obvious one that the US government want their stuff back – probably is the same that has been repeated time and again:

Mr Snowden “should come back, he should be sent back, and he should have his day in court,” he should “stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

Now. Giving Mr Snowden an official forum to speak and to address the charges made against him may sound like a good idea in principle.

In practice, however, it really doesn’t sound that good at all.

Being charged under the Espionage Act, Mr Snowden’s chances of properly arguing his case are perceived to be rather slim.

“These statements [that call for Mr Snowden to make his case in court] belie a fundamental misunderstanding about how Espionage Act prosecutions work,” Trevor Timm of the Freedom of the Press Foundation writes.

“If Edward Snowden comes back to the US to face trial, he likely will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.”

Examples of this are Thomas Drake and, most recently, Chelsea Manning.

If the prosecution had their way, Snowden would also not be able to explain to a jury that his leaks sparked more than two dozen bills in Congress, and half a dozen lawsuits, all designed to rein in unconstitutional surveillance. He wouldn’t be allowed to explain how his leaks caught an official lying to Congress, that they’ve led to a White House review panel recommending forty-six reforms for US intelligence agencies, or that they’ve led to an unprecedented review of government secrecy. He wouldn’t be able to talk about the sea change in the public’s perception of privacy since his leaks, or the fact that a majority of the public considers him a whistleblower.”

Sound good or fair to you? No, not me either.

And by the way, Holder certainly doesn’t. Consider Mr Snowden a whistleblower, I mean: “I prefer the term defendant. That’s the most apt title.”

Mr Snowden is aware of these issues. When asked about this during the Q&A he responded:

Returning to the US, I think, is the best resolution for the government, the public, and myself, but it’s unfortunately not possible in the face of current whistleblower protection laws, which through a failure in law did not cover national security contractors like myself.
The hundred-year old law under which I’ve been charged, which was never intended to be used against people working in the public interest, and forbids a public interest defense. This is especially frustrating, because it means there’s no chance to have a fair trial, and no way I can come home and make my case to a jury.

 

Questions and Answers

Allow me to dwell on that Q&A session for a little because I think Mr Snowden made some important points which I would like to quote here.

Further on whistleblower protection in the United States he said:

One of the things that has not been widely reported by journalists is that whistleblower protection laws in the US do not protect contractors in the national security arena. There are so many holes in the laws, the protections they afford are so weak, and the processes for reporting they provide are so ineffective that they appear to be intended to discourage reporting of even the clearest wrongdoing. If I had revealed what I knew about these unconstitutional but classified programs to Congress, they could have charged me with a felony…

On claims that he cheated his co-workers out of their passwords, he corrected:

With all due respect to Mark Hosenball, the Reuters report that put this out there was simply wrong. I never stole any passwords, nor did I trick an army of co-workers.

On surveillance in general and indiscriminate mass surveillance:

Not all spying is bad. The biggest problem we face right now is the new technique of indiscriminate mass surveillance, where governments are seizing billions and billions and billions of innocents’ communication every single day. This is done not because it’s necessary — after all, these programs are unprecedented in US history, and were begun in response to a threat that kills fewer Americans every year than bathtub falls and police officers — but because new technologies make it easy and cheap.

I think a person should be able to dial a number, make a purchase, send an SMS, write an email, or visit a website without having to think about what it’s going to look like on their permanent record.

…. The NSA and the rest of the US Intelligence Community is exceptionally well positioned to meet our intelligence requirements through targeted surveillance — the same way we’ve always done it — without resorting to the mass surveillance of entire populations.

I suggest you read the complete Q&A. Some of it isn’t quite new but I believe that it shows once again that Mr Snowden is, as one Twitter user put it: “smart, thoughtful, very un-arrogant.”

There is certainly no evidence of the megalomania or naïveté that his opponents accuse him of.

Importantly, on the threats that have been made to his life, he has something to say that has been bothering me as well:

That current, serving officials of our government are so comfortable in their authorities that they’re willing to tell reporters on the record that they think the due process protections of the 5th Amendment of our Constitution are outdated concepts. These are the same officials telling us to trust that they’ll honor the 4th and 1st Amendments.

Once, again Mr Snowden is right that “[t]his should bother all of us”.

And even if these comments sprung up in the heat of a particular moment (which, given the nature of some of them, I sincerely doubt), then surely serving officials should know better than to speak them in public – to a news source no less.

Which is why I am not quite sure if I agree with Jesselyn Radack’s assessment that “the tide has changed for Snowden. All of these things taken together counsel in favor of some sort of amnesty or pardon.”

To be fair to Ms Radack, she made that statement a month ago and it was only on Thursday that Mr Holder made it clear that Mr Snowden might be able to expect some sort of bargain only in return for a guilty plea.

The problems with that, of course – in addition to hysterical calls for assassination made by some members of the intelligence community – I have outlined above.

Movement

So yes, things are definitely moving.

The World Economic Forum in Davos this week saw the launch of an independent commission that  is to “investigate the future of the internet in the wake of the Edward Snowden revelations”.

The commission has been set up by Britain’s foreign affairs thinktank Chatham House and by the Center for International Governance and Innovation (CIGI), which is partly funded by the Canadian government. It will conduct a two-year inquiry.

While this is an interesting idea, what disturbs me about it is that Chatham house and the CIGI seem to view the Snowden revelations as a threat to a free, universal internet: “revelations about the nature and extent of online surveillance have led to a loss of trust.”

This misses the point. The threat aren’t Mr Snowden’s revelations or merely “a number of authoritarian states […] waging a campaign to exert greater state control over critical internet resources.”

Rather, one of the major threats is indiscriminate mass surveillance conducted by so-called Western democracies.

It is certainly promising that the US privacy board “plans in the coming weeks to issue another report evaluating the NSA’s collection of bulk foreign Internet communications, which have included those with Americans “incidentally” collected”, yet we must not forget that these can only be initial steps.

For now, the US administration still considers the bulk phone record collection programme “lawful” and whistleblowers in the US are by no means well-protected enough.

I strongly disagree with Alex Little’s assessment that Mr Snowden could get a fair trial in the US.

I, for one, have little faith that any of the hypotheticals that Mr Little suggests as the conditions for such a trial have a chance of being realized.

For now, both NSA surveillance and whistleblower protection are in dire need of reform.

It seems that only when Mr Snowden is given full credit for enabling such reform – and giving due credit absolutely includes the right to fair treatment before US law, an end of death threats and false allegations – will he be able to even consider returning to the US.

He still seems to have faith that this might happen:

“What makes our country strong is our system of values, not a snapshot of the structure of our agencies or the framework of our laws. We can correct the laws, restrain the overreach of agencies, and hold the senior officials responsible for abusive programs to account.”

It remains to be seen if he is right on that count but it is doubtful that even if he is, his personal situation will be allowed to improve.

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Prettifying the ugly: what the President really said

The big one: President Obama’s speech on the NSA

So this Friday saw it then. The one we have all been waiting for. The one that has been both anticipated and dreaded by civil libertarians and the security services alike (albeit for different reasons): President Obama’s speech (full text here), announcing his plans for reforms of the NSA’s surveillance capabilities.

A spoiler: I was neither very impressed, nor very surprised.

What Mr Obama outlined on Friday has been variously hailed as “significant change” and an “overhaul” of the NSA’s surveillance activities. The New Yorker even lauds the speech as a “Major victory for Snowden and N.S.A reformers”.

I disagree.

For all its pretty rhetoric and invocation of days long past, the speech offered nothing new or surprising, let alone “radical”.

Rather, what it mostly did was try to reassure sceptics, the public, and foreign leaders about the NSA’s programmes; that they were not being abused, that a system of meaningful and effective oversight exists and – most importantly – that they are needed to keep people safe from terrorist and other attacks.

Crucially, Mr Obama announced that he will leave that most controversial capability in tact; the bulk collection of telephone records under section 215 (and do not let yourselves be fooled by those who claim that he called an end to this programme either. He merely called an end to it in its current form. You will see shortly that this is no actual end at all).

Mr Obama had this to say:

“[T]his program does not involve the content of phone calls, or the names of people making calls. Instead, it provides a record of phone numbers and the times and lengths of calls – meta-data that can be queried if and when we have a reasonable suspicion that a particular number is linked to a terrorist organization.”

Now. I cannot be the only one who finds this irksome.

Once again, between the lines, there is the implication that it is not the content of phone calls or names that is of interest but the metadata.

This may have sounded reassuring six months ago.

Oh good, we were supposed (and apparently are still supposed) to be thinking, the spooks aren’t listening to what I am saying. They are not sitting there eavesdropping on the secrets I exchange with my friends and family.

Yet, by now anyone informed about this programme and the true meaning and implication of metadata collection becomes rather more concerned than reassured by this kind of statement.

As has been repeated time and again, metadata is far more interesting and meaningful than the content of calls. It gives the people in possession of it far greater capabilities than the mere content could. It allows them to see who speaks to whom, for how long, and then who those people speak to after that. It allows for the mapping of everyone’s communications, for the establishment of connections, for the tracing of movements. It makes us all into little dots on a big map that can scrutinized at will.

Mr Obama himself said as much in his speech:

“The telephone metadata program under Section 215 was designed to map the communications of terrorists, so we can see who they may be in contact with as quickly as possible.”

This may (be intended) to sound good in theory but in practice it means that every single one of our communications could potentially be mapped and that we could fall under suspicion simply because someone who has been in contact with someone else who may be considered suspicious then comes in contact with us.

In practice, we could all show up on that map and be considered suspicious at one point or another in time.

To maintain, in light of this, that the government is not spying on ordinary citizens simply relies, according to The Washington Post’s Barton Gellman, on “an unusually narrow definition of “spying.””

Namely one that “does not include the ingestion of tens of trillions of records about the telephone calls, e-mails, locations and relationships of people for whom there is no suspicion of relevance to any threat.”

Of course, Mr Obama was quick to reassure people in his speech that mapping the movements of innocents is not what is being done and that this is not what the programme is for either.

“In sum,” the president said, “the program does not involve the NSA examining the phone records of ordinary Americans. Rather, it consolidates these records into a database that the government can query if it has a specific lead – phone records that the companies already retain for business purposes. The Review Group turned up no indication that this database has been intentionally abused.”

There are several problems with this.

Firstly, “specific lead” seems to be a rather unspecific term. What constitutes such a lead and who decides that any lead justifies the querying of that data?

Secondly, it is one thing for phone companies to retain the data for business purposes (and, mind you, no less worrying) but the government should, as Mr Obama himself admits, be held to a higher standard.

Thirdly, evidence does exist that the database has been abused – and intentionally as well. Remember LOVEINT?

And even if the violations aren’t wilful but the results of human error, there still needs to be a debate, I think, on whether we want all our communications to be stored in a way that allows for serious mistakes resulting in us becoming potential targets.

Mr Obama admits this too:

“I believe critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives, and open the door to more intrusive, bulk collection programs. They also rightly point out that although the telephone bulk collection program was subject to oversight by the Foreign Intelligence Surveillance Court and has been reauthorized repeatedly by Congress, it has never been subject to vigorous public debate.”

Ending the bulk metadata programme under Section 215 – without ending it at all

Which leads to what has been lauded as the most significant change announced on Friday:

“I am […] ordering,” Mr Obama said, “a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk meta-data.”

This is where I feel that my view significantly differs from that of all those people who hail this as a massive step forward.

Bewilderingly, all these people seem to have heard for some reason is the first part of the statement: “I am […] ordering a transition that will end the Section 215 bulk metadata program as it currently exists…”

Now, be careful with that one. The phrase as is currently exists already gives away that this is no uncompromising abolition of the programme or its mass storage capabilities.

As Mr Obama said earlier on in his speech, he believes these capabilities are necessary. All he promises here is that the government will no longer store this data, not that the data will not be stored at all.

And this is where it gets really tricky because Mr Obama admits that, for now, the government has not really worked out where the data is to be stored in the future or by whom.

The system as it currently exists works like this:

The NSA stores a bulk of telephone data.

This data can be queried.

In theory, a warrant is needed if any of those queries target US citizens.

In practice it has been shown that the system of oversight that exists to prevent the targeting of American citizens is not as safe or reliable as it ought to be.

Now, the new system looks something like this:

Data will still be stored in bulk but by someone other than the NSA (and it is not yet clear who).

A procedure is to be established that requires the NSA to obtain permission to query that data.

I don’t know about you but to me that pretty much sounds like the same thing in a different box.

It is therefore not surprising that “privacy advocates are [not] particularly fond of [this course of action]: phone records will still be collected, stored, and available for search by the intelligence agencies. The question of where the data actually sits is, to opponents of the program, far less significant than the fact it is being stored at all.”

So then, perhaps the two most meaningful changes are these:

“Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three. And I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”

One, instead of what has been called the “three hops” approach that allows people that are up to three calls away from any target to be pursued, from now on only people up to two calls away can be pursued.

This reduces the reach of the map described above: “Back-of-the-envelope Guardian calculations suggest this could reduce the number of people caught in the dragnet of a typical search from around five million to nearer 31,000.” 

Two, from now on “analysts will first have to persuade a judge that there is reason to scrutinize callers linked to a particular phone number.” (Careful with this because there is a “loophole allowing the N.S.A. to act on its own in a “true emergency,” with after-the-fact judicial review.” Whatever constitutes a “true emergency” or who determines that is does is open to conjecture.)

Well, given the previous security from government overreach (or lack thereof), I fail to be very impressed by this.

Take into consideration what Glenn Greenwald writes with regard to the Fisa court: “[it] was designed to ensure that all of the government’s requests were approved: it met in secret, only the government’s lawyers could attend, it was staffed with the most pro-government judges, and it was even housed in the executive branch. As planned, the court over the next 30 years virtually never said no to the government.”

Similarly, after it was revealed in 2005 “that the NSA under Bush had been eavesdropping on Americans for years without the warrants required by criminal law, [instead of resolving the problem] [t]he US political class […] enacted a new Fisa law that legalized the bulk of the once-illegal Bush program, including allowing warrantless eavesdropping on hundreds of millions of foreign nationals and large numbers of Americans as well.”

Hence, rather than to abolish the programme, they made it legal. The same thing seems to be happening now.

Because get this: while Mr “Obama has announced an annual review of which Fisa court decisions should be declassified and made public, […he] has put the director of national intelligence in charge of overseeing that procedure. Additionally, Obama called for the “establishment of a panel of advocates from outside government” to advise the court of “significant” cases, but has called on Congress to implement this panel, and to decide how its role would work – assuming Congress establishes it at all.”

So basically, the chief spy is in charge of what information is made available to the public and it has been left to government to establish a panel of advocates outside of itself that is to advise the Fisa court on significant cases.

Seems like the power to make significant changes to oversight remains mostly with people who cannot and evidently are not that interested in oversight at all.

Take into consideration that there is still substantial opposition in Congress to the idea of reining in the NSA’s powers.

As such, “the Leahy/Sensenbrenner bill” – the USA Freedom Act that would end bulk data collection – “still faces a significant challenge from lawmakers close to the intelligence community, who say Obama’s defence of the NSA supports their position.

Pretty rhetoric but little actual substance

In fact, from the very start, the construction and rhetoric of the speech with its invocation of the war on terror, the cold war. and 9/11 hints to what the effective lack of meaningful reform makes very clear.

First and foremost, this is a speech designed to “give the American people greater confidence that their rights are being protected” while allowing the “intelligence and law enforcement agencies maintain the tools they [allegedly] need”.

What is still lacking is evidence of the effectiveness of the programmes, even though Mr Obama once again suggest that they have foiled a number of terrorist plots.

However, “Obama’s own review group concluded that the sweeping phone records collection program has not prevented any terrorist attacks.” You can read up on this and five other questionable claims Mr Obama made in his speech here.

What is also somewhat lacking is reassurance for people outside the US.

Granted, Mr Obama took pains to reassure foreign leaders and foreign citizens that “the US only spies for national security reasons, only takes industrial secrecy of other nations when there is a pressing national security lead, and doesn’t spy on foreign citizens for prurient reasons”, but all of these assurances were rather vague, including as yet unspecified safeguards.

I should also like to ask who determines what a “pressing national security lead” is precisely.

Falling short of recommendations

In any case “steps do fall substantially short of what Obama’s review panel recommended”.

“For example, Mr. Obama did not accept one of the most far-reaching recommendations of his own advisory panel on surveillance practices: requiring court approval for so-called national security letters, a kind of subpoena allowing the F.B.I. to obtain information about people from their banks, cellphone providers and other companies,” the New York Times reports.

Thus, despite the rhetorical finesse of this speech, it remains to be seen how many meaningful changes to these programmes will really be made.

As the Guardian reports, “[i]nternational campaign groups were […] critical, arguing that there was little substance behind the president’s rhetoric, likening it to “music on the Titanic unless his administration adopts deeper reforms.”

“The big-picture takeaway from today’s speech,” according to Amnesty International USA, “is that the right to privacy remains under grave threat both here at home and around the world.”

They are not wrong. In the end, the speech was a defence of the NSA and its programmes.

And reading between the lines of Mr Obama’s comments about Edward Snowden, it is hardly reassuring that the president, even in light of the necessary debate that Mr Snowden’s revelations have started, still does not acknowledge Mr Snowden’s actions as beneficial or necessary.

“If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy.”

In essence, he is still saying that what Mr Snowden did was wrong, that his actions have endangered security (again, there is no evidence of this) and that he should have tackled the issue in a different way by going the official route and “tak[ing] advantage of whistleblower protections.”

Yet not only has Mr Obama’s government prosecuted whistleblowers in an unprecedented manner. More than that, the protections Mr Obama refers to do to extend to contractors.

I have said this before and I am going to say it again: to acknowledge that a debate is necessary while at the same time blaming those who have brought this debate about is either a paradox or it betrays that you would have preferred not to have a debate at all, or, if you did, to have it on your own terms and within your own control.

That, however, would not be true and meaningful debate at all.

It is therefore not much of an acknowledgement that “this debate will make us stronger” because the question remains as to who will emerge stronger at the end of it. Given the unimpressive nature of the proposed reforms it might still be the NSA.

Critical voices

And I am not the only one who thinks that Obama’s speech was mostly underwhelming.

Senator Rand Paul, for one, told CNN: “It’s not about who holds it, I don’t want them collecting Americans’ information.”

Perhaps unsurprisingly one of the most clear-spoken critics of the president’s speech is Glenn Greenwald, who points out that the “cosmetic “reforms”” Mr Obama calls for mainly serve “to placate public anger while leaving the system fundamentally unchanged, even more immune than before to serious challenge.”

Mr Greenwald isn’t wrong when he writes that while the speech offers “positive steps [such as a] public advocate in the Fisa court, a loosening of “gag orders” for national security letters, removing metadata control from the NSA, stricter standards for accessing metadata, and narrower authorizations for spying on friendly foreign leaders (but not, of course, their populations)”, it was also dismayingly “bereft of specifics”.

Similarly, the New York Times suspects that the president’s speech was “more calculated to reassure audiences at home and abroad than to force radical change”.

What I wonder is whether mollifying the indignation felt by international leaders will not also serve the US’s end of further isolating Edward Snowden. Placated international governments may be even less inclined to see the value of Mr Snowden as a witness or the moral imperative that they have been trying to overlook for so long; that someone who made them aware of the US’s overreach deserves their protection and help.

Most importantly though, “the radical essence of the NSA – a system of suspicion-less spying aimed at hundreds of millions of people in the US and around the world – will fully endure even if all of Obama’s proposals are adopted.”

That, in the end, is really what we should be taking away from the President’s speech, that it is merely “the first step, not the last, on the road to restoring privacy.”

If we let ourselves be lulled into believing that this is it, truly meaningful reform is not likely to happen. That is what this speech is truly indicative of and we would do well to make ourselves aware of that.

Other related incidents #1: Project Dishfire

To conclude, some other news I felt were worthy of note this week.

Firstly of course the revelation that the spooks are reading our texts.

As the Guardian revealed jointly wth UK’s Channel 4, “The National Security Agency has collected almost 200 million text messages a day from across the globe, using them to extract data including location, contact networks and credit card details, according to top-secret documents” while the “UK spy agency GCHQ has made use of the NSA database to search the metadata of “untargeted and unwarranted” communications belonging to people in the UK.”

The project is called Dishfire and it is yet another example of how data is indiscriminately sucked up by the NSA and of how surveillance agencies circumnavigate restrictions placed on domestic spying.

Feel reassured? Didn’t think so. More information on what the spooks potentially know about you and your travel plans here.

Other related incidents #2: UK Foreign Secretary William Hague gets Rusbridgered

Elsewhere in the UK, the Guardian’s Alan Rusbridger was interviewed on NSA and GCHQ surveillance.

Responding to questions regarding comments made by UK Foreign Secretary William Hague, who lauded the UK as having “one of the strongest systems of oversight”, Mr Rusbridger clarified some important points:

One, he “pointed out that leaked documents seen by the Guardian show a GCHQ legal adviser argued that “we have a light oversight regime compared with the US“.”

Two, “[h]e said that metadata – the details of who sent contacted whom, and when – could reveal “almost everything about you”. I repeat: maintaining that collecting metadata instead of content isn’t spying is to rely on a narrow definition of spying. You could also call it lying.

Three, Mr Rusbridger repeated once again that “[t]here was no evidence for the “theatrical” claim by Sir John Sawers, the head of UK foreign intelligence agency MI6, that terrorists were “rubbing their hands with glee” at the Snowden revelations.” Just in case you were wondering if that was still a thing.

Other related incidents #3: spies fantasize about killing Edward Snowden

And finally, it seems that I wasn’t wrong last week when I wrote that I am not sure a plea bargain or clemency that will see Edward Snowden’s return to the US is a good idea.

I didn’t think it sounded safe.

Cue Buzzfeed, which this week published comments by US spies who not only said they wanted Edward Snowden (the “traitor”) dead but also that they would be quite happy to do him in themselves.

And they are sickeningly specific about the “how” of it as well.

Let us be clear: there are no circumstances – none whatsoever – in which a human being can forfeit their right to life. Countries that have abolished the death penalty thankfully have made this principle law. It just doesn’t seem to have reached the USA yet.

This outdated mindset needs to be changed urgently.

There is something fundamentally wrong (and certainly completely outdated) about the idea of revenge or the belief that it is sometimes acceptable to take “an eye for an eye”, let alone a life for a life or, as in Edward Snowden’s case, a life for something that some people see as treason but others (myself included) see as a brave act of civil disobedience.

This the 21st century.

People need to realise that taking another person’s life is inacceptable, and they need to do it quickly.

But until they do, Edward Snowden is not safe in the US.

Having said that, I encourage everyone to sign this petition to secure him asylum in Brazil.

Let us stand with Mr Snowden and help make sure he stays protected!

Edward Snowden: A Case for Clemency?

Happy New Year, readers!

I hope you all had a brilliant holiday and a great start to 2014. So, let’s dive right into the New Year, shall we?

Well, 2014 certainly started off in as interesting a way as 2013 ended.

Ahead went the New York Times and published an editorial calling for clemency or a plea bargain for Edward Snowden.

This caused a lot of noise.

The idea isn’t new. A deal between Mr Snowden and the US government, possibly in return for the documents Mr Snowden took from the NSA, was first suggested some weeks ago by Richard Ledgett, “[t]he NSA official in charge of assessing the alleged damage caused by Snowden’s leaks”.

Personally, I think that the arguments in favour of clemency are sound: considering the service that Edward Snowden has done many countries and their people, not to mention that his revelations “have triggered a valuable debate, leading possibly to much-needed reforms”, I agree that he should not continue to be exiled or spend his life behind bars.

However, given the vitriol that not only Mr Snowden but also the reporting journalists have met with, and the fact that any form or clemency would be subject to a deal to restrict or stop further revelations, I am not sure how good the idea is in practice.

After all, Mr Ledgett has said that he “would need assurances that the remainder of the data could be secured, and my bar for those assurances would be very high. It would be more than just an assertion on his part”.

I was quite interested by this debate (obviously) so I am going to look at it in a bit more detail.

Some arguments against clemency

“From where I sit today, I would not put clemency on the table at all…I think Snowden has exacted quite a bit of damage and did it in a way that violated that law. The damage we’ll see now and we’ll see it for years to come.”
-Janet Napolitano, former US former secretary of homeland security-

The damage argument has been made time and time again and it remains, as yet, unproven. I have commented on this a number of times previously so let it suffice as a reminder that “none of Snowden’s revelations have done profound damage to the intelligence operations of the U.S., nor have his disclosures hurt national security.”

Only this week, Edward Snowden’s attorney Ben Wizner said that “[t]here is not a shred of evidence that any adversary has had any access to any document other than those published by journalists.”

This follows claims based on a classified (!) “Defense Department report that […] alleged that Snowden’s leaks – which [House intelligence committee leaders Mike Rogers […] and Dutch Ruppersberger”] said totalled 1.7m intelligence files and impacted intelligence operations of all military branches – could “gravely impact” US national security.”

None of these allegations have been substantiated with evidence – nor can they be because the information necessary for that is – all together now! – classified.

Edward Snowden is no Daniel Ellsberg – Fred Kaplan

So, apparently, this is the piece that has been hailed as “a sharp well-argued rebuttal to The New York Times’ editorial”.

But it is neither very sharp, nor very well-argued and here is why:

Kevin Gosztola, who has quite successfully dissected the piece, correctly raises the point that all it really does is reiterate a number of arguments that have been floating around, none of which are very convincing and some of which have been proven false.

These arguments don’t get any better, any more true or convincing simply because people keep repeating them ad nauseam. Which is what Kaplan does. And he makes several other very questionable arguments besides.

For example, Mr Kaplan argues that some of[t]he[…] operations [revealed by Snowden] have nothing to do with domestic surveillance or even spying on allies. They are not illegal, improper, or (in the context of 21st-century international politics) immoral. Exposing such operations has nothing to do with “whistle-blowing.””

That statement alone is flawed in so many ways.

For one thing, I have always found worrying the (frequent) implication that it is somehow okay to spy internationally on a massive scale as long as your own agencies don’t spy domestically. Arguments like that are based on a too narrow and, might I add, egoistic and ignorant point of view.

For another, it seems an ill-informed and naïve thing to say that none of these operations are illegal, improper and immoral. Or perhaps Mr Kaplan simply has a very different idea from mine about what is (il)legal, (im)proper and (im)moral.

Writes Gosztola: “To Kaplan […] CIA efforts in Pakistan, which have involved a “vaccine ruse” that has hurt the fight against polio, is not improper or immoral. Targeting and killing alleged terror suspects on a “kill list” away from any declared battlefield in Pakistan, Somalia or Yemen is entirely legal and moral. “Incidentally,” collecting cell phone location data from “tens of millions of Americans who travel abroad with their cellphones every year”—a result NSA officials can foresee but do nothing to stop—is legal and proper.”

No it isn’t (Gosztola realises this, of course, he is being sarcastic).

Questions of morality

Which is precisely the point: arguments like Kaplan’s seem to suggest that as long as these things are not done domestically, they can somehow be considered moral and proper. But just because something is being done by your people outside your borders doesn’t mean it is subject to a different definition of morality or propriety .

Violating the rights of the citizens of a nation that isn’t your own is still a violation, if not by law then by the ideas of propriety and morality that we believe ourselves to be subject to.

Undermining the fight against polio is immoral, placing people on a kill list is immoral, “incidentally” collecting cell phone location data is immoral and – potentially – illegal.

To concentrate solely on domestic surveillance when discussing the NSA is not taking things far enough. And in a global world it seems hardly appropriate either.

Why do so many people still seem to think that it is perfectly okay to only behave morally towards the people in your own country (and not even that)?

Surely, the same human rights apply to every human being in the world, not just those of a certain nationality? Edward Snowden, I believe, realises this, Mr Kaplan on the other hand…

Another criticism Kaplan repeats (for the umpteenth time) is that Snowden praised Russia’s leaders.

Not quite.

“Rather, Snowden… has shown appreciation to President Vladimir Putin and other Russian officials for giving him temporary asylum and be willing to stand up to the US, which revoked his passport creating the situation where he was stuck in an airport in Moscow.”

Indeed, arguments that use Mr Snowden’s “choices” regarding Russia against him, fail to take into consideration that by the time he pleaded for asylum in Russia, he had precious little alternatives left.

No, I take that back. He had no alternatives left whatsoever.

More than that, like so many others, Kaplan “deliberately ignores statements by journalist Glenn Greenwald, The Washington Post’s Barton Gellman, the ACLU’s Ben Wizner and the Government Accountability Project’s Jesselyn Radack. He ignores the statements Snowden made in communications with New York Times reporter James Risen.”

And that’s not where the problems end either. On goes Kaplan to argue that “Snowden signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information, and knew the penalties for violating the oath.”

“Oath Braking”

One of my absolute favourites. This apparent obsession, evident in so many similar arguments, with keeping an oath no matter what – precisely because it is being repeated so many times – is deeply worrying and, to me, utterly puzzling. It is also, to be entirely honest, a bit daft.

Okay, oaths aren’t made to be broken but blind adherence to any kind of rule, directive or oath must be weighed against the moral implications and consequences of keeping that oath.

“It is a fundamental truth that wrongful secret-keeping is the most widespread form of complicity in wrong-doing. It involves many more people both within and outside an organization that is acting wrongfully than those who give wrongful orders or who directly implement them, though it includes these,” writes Daniel Ellsberg, the very whistleblower who Kaplan thinks Edward Snowden isn’t like (Ellsberg disagrees).

Even more interestingly, “[t]here is also the question,” Amy Davidson writes in the New Yorker, “of why an oath matters, in a different way than a serious federal law.”

Why is it worse, apparently, to violate an oath, than to violate the law? It isn’t. And by the way, the assumption that it should be, is the daft part of the whole oath-violation-argument.

Ostrich-like, it avoids the question of whether to keep the secret would have been (more) wrong and complicit in (worse) wrong-doing.

More importantly, Davidson questions the notion that Mr Snowden even took an oath.

A naïve computer wiz-kid with an inflated ego

None of that matters much to Mr Kaplan, it seems, as he goes on and on, repeating pretty much without fail every outdated argument against and criticism of Mr Snowden out there.

Another personal favourite of mine: that Edward Snowden is a vain or naïve megalomaniac.

I never understand how people conclude that.

A personal anecdote: when I was first asked to sign an online petition to support Mr Snowden in June, I took a long hard look at the interviews he recorded with Glenn Greenwald and Laura Poitras to find out exactly who I would be supporting.

I have kept that close look since. I have broadened it to the journalists who work with Mr Snowden and I think I have said multiple times that I have never had any reason not to believe them or to think that they are in it solely out of arrogance or for their own benefit.

I suggest you do what I did: watch the Guardian’s interviews with Mr Snowden, read the Q&A transcripts and statements by Mr Snowden that have been in circulation. Read what supporters and people who have met them have written about Mr Snowden, Ms Poitras, Mr Greenwald.

Take into consideration that Edward Snowden has been much less present in the media than he could have been and that he refused to sell the rights to his story to anyone.

Then make up your mind if we are talking about a person that is in it for the money, a traitor, naïve or a megalomaniac.

Take a good long look at how prone to hubris he really is (spoiler: not at all) and, just for fun, compare that to Keith Alexander: I wrote a post on Alexander and hubris in September last year that I had some fun with.

Oh, while you’re at it: don’t forget what Mr Snowden gave up to make us all aware of these programmes.

Richard Cohen, in the Washington Post, puts it like this: “he was giving Americans information that maybe we should have had all along and getting nothing in exchange — no baubles, no dames and, much less cinematically, no eurobonds.”

What that shows is conviction, not arrogance.

As for the allegation thatSnowden gained access to his cache of documents by persuading 20 to 25 of his fellow employees to give him their logins and passwords” – last time I looked that wasn’t even verified so perhaps Mr Kaplan should go back and check his facts.

So, to summarize, arguments against clemency for Mr Snowden include that he is no Daniel Ellsberg because he “praised” Russia’s leaders (misleading), that he leaked more than “just” documents about domestic surveillance (as if mass global surveillance wasn’t worth knowing about), that he violated his oath (which for some reason is worse than NSA violations of the law and the constitution), that he cheated his colleagues out of their passwords (contested) and that he did all of this because he is a deluded megalomaniac.

For all of that, so the argument seems to go, he should at worst “be hanged from the neck until he is dead” and at best grilled with questions while “hooked up to a lie-detector.”

That’s a so-called free and democratic society in operation for you. Applause.

Some arguments in favour of clemency

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency.
– The New York Times editorial board –

So argued the New York Times, setting off the debate that dominated the first week of 2014. I certainly agree that Mr Snowden has done his country a great service – and many other countries besides.

I also agree that, given the questionable legal status of the surveillance programmes exposed by Mr Snowden, that “[i]f Edward Snowden is a criminal, then so are a lot of people that are working within the CIA and the NSA who have been spying illegally on American citizens” as Former Montana governor Brian Schweitzer has argued, also calling for clemency.

Trevor Timm in the Guardian states correctly that the programmes “are an abuse…as long as the NSA is collecting such a vast database on every innocent person in the United States, and then searching it at their own discretion, they are abusing [the US] constitution”.

Existing or planned law suits testify to the fact that many people share this opinion.

As such Rand Paul, “a libertarian and potential 2016 presidential candidate, […] plans to lead a class action lawsuit against the NSA over its data collection programs. Paul claims that hundreds of thousands of supporters have signed on to his lawsuit thanks to the information brought to light by [Edward Snowden]”.

It should be obvious that to acknowledge the immense importance of Mr Snowden’s revelations while insisting at the same time that he should spend the rest of his life in prison is a bit ludicrous.

And their importance is by now widely acknowledged:

The Senate Intelligence Committee has launched a major reexamination of government surveillance programs. A panel appointed by President Obama in December called for a litany of reforms, and the president has promised “a pretty definitive statement” on which of them he supports sometime this month.”

The debate that Mr Snowden has facilitated will no doubt be argued over in the US supreme court. If those justices agree with Mr Obama’s own review panel and Judge Richard Leon in finding that Mr Snowden did, indeed, raise serious matters of public importance which were previously hidden (or, worse, dishonestly concealed), is it then conceivable that he could be treated as a traitor or common felon?

The answer is a clear and resounding no.

Debate about mass surveillance – thank you, Edward Snowden

If still in doubt, consider that “remarkable week before Christmas,” when

a US judge found that the “almost Orwellian” techniques revealed by Mr Snowden were probably unconstitutional. A review panel of security experts convened by President Obama himself made more than 40 recommendations for change. The leaders of the eight major US tech companies met the president to express their alarm. Parliamentarians, presidents, digital engineers, academics, lawyers and civil rights activists around the world have begun a wide-ranging and intense discussion. Even the more reasonable western security chiefs acknowledge a debate was necessary.

Even if you agree that Mr Snowden did break the law when absconding with troves of classified documents, that still doesn’t alter the fact that – potentially – the NSA and GCHQ broke the law themselves when using the programmes Mr Snowden has exposed.

This week, an inquiry by the European parliament’s civil liberties committee stated that “NSA and GCHQ activities appear illegal”, condemning mass surveillance.

It is because of Mr Snowden’s brave decision to expose these programmes that we are now in a position to examine their legality both domestically and internationally, and the law should be flexible in dealing with the person who made us all aware of what we desperately needed to know to protect our democracies.

Calling for clemency or a plea bargain is therefore neither far-fetched, nor illogical, let alone “outrageous”, as former NSA boss Michael Hayden (who else?) has suggested.

Tim Cushing on Techdirt has this to say on the subject:

“The suggestion isn’t that “outrageous.” Snowden’s leaks have prompted some normally-complacent politicians to reexamine the NSA. Several pieces of legislation have been introduced in response and the support for these crosses party lines.”

Clemency or a plea bargain – a good idea?

From Mr Snowden’s point of view, I am not so sure. I cannot be the only one to whom the kind of deal Mr Ledgett seems to envision sounds like little more than a gag.

So far, the Snowden revelations have made available a wealth of much-needed information on the extent of government surveillance. Who knows what else is yet to come and what, in turn, we might miss out on knowing if a deal is struck?

Granted, it may seem questionable in how far the US government would succeed in gagging the newspapers Snowden leaked his documents to.

And if a plea bargain is the only way for Mr Snowden to be able to leave Russia and perhaps even return home safely then perhaps he should agree to it. In my personal view, he has done more than enough.

But would he be safe? I doubt it.

For all his background in constitutional law and human rights, Mr Obama has shown little patience for whistleblowers: his administration has used the Espionage Act against leakers of classified information far more than any of his predecessors. It is difficult to imagine Mr Obama giving Mr Snowden the pardon he deserves.

So writes the Guardian and what is more, a lot of people still seem to believe that Mr Snowden does not deserve clemency let alone a pardon.

I agree.

Clemency or a pardon aren’t enough.

I think in light of NSA violations of domestic and international law (should this be ruled) charges against Mr Snowden should be dropped. He is not a criminal. He is a whistleblower. He should not be prosecuted.

Michael Hayden has said that granting clemency to Edward Snowden would send the “wrong signal” to future whistleblowers.

Wrong. Mr Hayden, that claim is outrageous.

Clemency for Snowden would send precisely the right signal: that whistleblowers can speak up without fear of prosecution which is exactly the opposite message to the one the US government has been sending out: “keep your head down and shut up.”

Obviously, calling for charges to be dropped is calling for the impossible.

So, in my opinion, the best idea would be for the US to come to an agreement that would restore Mr Snowden’s passport to allow him to travel and seek asylum in any country he liked.

Yet, given that one of the ideas behind a plea bargain may be to get Snowden back to the US I don’t really think that is an option either.

It seems far more likely that if Mr Snowden does return to the US, all he can hope for is “due process” and to only go to prison for a few years, as Rand Paul has suggested.

After all Michael Hayden and Mike Rogers have previously joked about placing Snowden on a kill list. I didn’t think it was funny then and I don’t think it’s funny now but perhaps the best he can hope for is to end up sharing a prison cell with James Clapper who allegedly lied to Congress.

That should make for some interesting discussions.

No, I am not being serious.

I do commend Rand Paul for statements like this one:

“Those who call for some sort of frontier justice for [Snowden] need to understand the laws needs [sic] to apply equally. James Clapper by all accounts committed perjury which is punishable by five years in prison and if you want to throw the book at Snowden, it’s a little hard to say ‘Oh, but we’re not going to do anything about James Clapper lying to Congress.’ […] [W]hat James Clapper did has greatly harmed the credibility of the intelligence agencies … he has really greatly damaged the intelligence community.”

However, until someone convinces me otherwise, I am not sure any bargain that doesn’t include his getting asylum outside the US (and Russia), is safe for Mr Snowden.

And here is why else clemency won’t happen.

Because it would be “a step in the direction of contrition — a small admission of the government’s betrayal of its constituents.

Correct me if I’m wrong but I cannot remember ever seeing the US government being contrite.

It is true that “[i]f the legislators working to rein in the agency truly want to change the system, they need to persuade the executive branch to drop its plans to shoot the messenger. The problems are of the NSA’s own making. Punishing the man who finally said, “this is enough” certainly isn’t the way to go about it, yet this is most likely what is going to happen if Mr Snowden returns to the US.”

So yes, someone should offer help to Mr Snowden, but it isn’t the US government.

It is – and I have said this before – the countries who are seeking his help, namely Germany and any other of the EU member states (except, of course, the UK; they are too busy trying to intimidate the Guardian).

This is what the consequence of the public service Edward Snowden did us all should really be, not gags disguised as leniency.