Tag: James Clapper Jr.

The Clemency Question

The NYT has run an op-ed calling for Edward Snowden to be granted clemency or a plea deal so that he can return to the United States. While acknowledging that he broke the law, they argue:

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 that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not. Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

If you want read the dispatches of that shrill brigade, you can check them out here and here. Most of it is the usual boilerplate — Snowden’s a traitor, the NSA is saving our lives, don’t be so hysterical. But they do raise one valid point. If we were to cut some kind of a deal to allow Snowden to return, does this create a moral hazard for other NSA or CIA employees to reveal classified information?

That is a legitimate concern. Our country does have some secrets it needs to keep. But I find myself agreeing with Conor Friedersdorf that we can craft things so that we allow true whistleblowers to come forward while not endangering necesssary secrets:

Here are some possible standards:

When the leak reveals lawbreaking by the U.S. government

When the leak reveals behavior deemed unconstitutional by multiple federal judges

When a presidential panel that reviews the leaked information recommends significant reforms

When the leak inspires multiple pieces of reform legislation in Congress

When the leak reveals that a high-ranking national-security official perjured himself before Congress

When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge

All of these are obviously met by Snowden as they were crafted around his acts. But that is the point. Clemency or pardon or a plea deal is not obviating the law. It is acknowledging that the law was broken but forgoing or reducing punishment due to extenuating circumstances. In this case, it is very easy to make clear what those extenuating circumstances were and tailor the circumstances to just cover Snowden.

Mataconis responds to the “hang Snowden” critics, most notably on the contention that Snowden should have gone to Congress. But he also raises a practical point:

There is, of course, one final point to keep in mind. Edward Snowden is currently beyond the reach of U.S. Law Enforcement and Intelligence Agencies for the foreseeable future. This means that we will remain unaware of what else it is that he might be in possession of that could be made public someday? Wouldn’t it make more sense to discuss making some kind of deal with him, in exchange for his full cooperation in exploring (1) what data he was able to obtain, (2) How he was able to obtain it even in cases where he apparently didn’t have the proper Security Clearances, and (3) How Intelligence Agencies could make their systems more secure in the future, rather than just leaving him hanging out there, apparently happy with his current living conditions, wondering when the next shoe is going to drop?

This carries a lot of weight with me. While Snowden is in foreign countries, the information he has, whatever it might be, in in danger of being revealed to our geopolitical enemies. Wouldn’t we much rather have him and his computers on American soil?

In the end, I find myself coming around to the idea that Snowden should be granted some sort of clemency … but only on things covered under the conditions Conor lists above: things related to massive surveillance, to law-breaking or to deception. He should not be granted any sort of clemency for any information he has given to Russia or China that compromises our national security. If Snowden has not revealed that kind of critical information to those countries, as he and his supporters claim, he should have no trouble accepting such a bargain.

Obama won’t do this, of course. He and his supporters have a lot invested in vilifying Snowden and defending the surveillance state. But maybe it’s something for Future President Rubio to consider.