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.

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