The Case For A Pardon For Edward Snowden

President_Barack_Obama228px-Picture_of_Edward_SnowdenBelow is my column in the Sunday Los Angeles Times on the basis for a pardon for Edward Snowden. It is clear that President Obama (and ranking congressional members) are opposed to such clemency. Snowden embarrassed a great number of powerful people in Washington, including the President. However, there is historical precedent for such a pardon and compelling arguments that such a course may be the right course for the country.

Former CIA Director R. James Woolsey weighed in last week on the subject of Edward Snowden. Asked about calls of clemency for the former National Security Agency contractor, Woolsey insisted that Snowden should be “hanged by the neck until he is dead.”
Woolsey reflects the current thinking in Washington: reform for the NSA and the rope for Snowden. However, it may be time for President Obama to show real leadership and acknowledge that Snowden is the reason for the current reform push.
It may be time to pardon Edward Snowden.

He has almost certainly committed criminal acts in removing and disclosing classified material. As someone who has held a top-secret clearance since the Reagan administration, I do not condone such violations of national security laws. However, Snowden is a better candidate for clemency than many believe.
A presidential pardon is not an endorsement of the underlying actions of an individual. To the contrary, the vast majority of pardons follow criminal convictions. Rather, pardons are issued because of mitigating or extenuating circumstances.
Sometimes clemency is a way of healing a national divide or bringing closure to a national controversy. George Washington pardoned all of those in the Whiskey Rebellion, and John Adams considered it in “the public good” to pardon Pennsylvania rebels. Likewise, Gerald Ford did not condone the crimes of Richard Nixon, but he viewed a pardon as in the best interest of the country.
YEAR IN REVIEW: Highs, lows and an ‘other’ at the Supreme Court
Presidential pardons can be issued at any time after an alleged offense, even before a person is charged or convicted. Such was the case with Jimmy Carter’s pardon of draft dodgers and Ronald Reagan’s pardon of the six officials accused in the Iran-Contra affair.
When considered in light of the thousands of past pardon and commutation recipients, Snowden compares favorably. Indeed, there have been many questionable pardons granted over the years to well-connected defendants, like that of businessman Marc Rich, who was convicted of tax evasion and other crimes but then pardoned by Bill Clinton.
While the Obama administration continues to insist that Snowden does not fit the definition of a whistle-blower, even the White House admits that abuses occurred in the massive NSA surveillance program that he revealed. Snowden’s disclosures have prompted the creation of two task forces, one of which came back last week with a recommendation of numerous reforms. Moreover, a federal judge has now ruled that the NSA program is flagrantly unconstitutional.
Snowden may have revealed a larger volume of material, but he is not the first to disclose highly classified matters. Most whistle-blowers release either confidential or classified material. Indeed, Daniel Ellsberg’s leak of the Pentagon Papers (celebrated as one of the most important moments in our history) involved the release of classified documents that the Nixon administration insisted placed the entire nation at risk.
Snowden faced a system that was entirely uninterested in, if not outright hostile to, hearing about abuses. Indeed, various people had tried to raise questions about the extent of government surveillance in previous years. I represented one prior NSA whistle-blower who disclosed the massive surveillance program, but the public ignored him and he was threatened with arrest.
Despite such cases and media coverage, the White House and Congress turned a blind eye to abuses. It was Snowden who forced action by leaking documents to a journalist. Both Obama and congressional leaders have called for Snowden’s arrest, but he was as much their creation as his own.
Some NSA officials have already suggested that amnesty could be used to secure thousands of documents still in Snowden’s possession. A pardon could be conditioned on the return of all these documents and the signing of a nondisclosure agreement that would allow prosecution for any further disclosures.
Moreover, a pardon would demonstrate to both Americans and our allies that the White House is serious about reform, and accepts responsibility for the abuses that have been documented.
Finally, a pardon would resolve a glaring contradiction in how the White House has dealt with alleged crimes by national security officials. After all, this is the president who pledged early in his first term that no CIA employee would be investigated, let alone prosecuted, for the Bush torture program. Likewise, no one was prosecuted when CIA officials admitted destroying torture tapes to avoid their use in any future prosecution. Finally, when the NSA program was raised in public, National Intelligence Director James Clapper appeared before Congress and lied about the program. He later said that he gave the least untruthful statement he could think of. But it was nevertheless untrue and potentially a crime for which he could be prosecuted.
But instead of firing Clapper and calling for his arrest, Obama asked him to participate on a task force to review the program.
Snowden could certainly take additional actions that could destroy any claim to a pardon. However, as he stands now, he has a greater claim than many who have received reprieves. He certainly deserves the same consideration in disclosing abuses that Obama officials received in concealing them from the public.
Jonathan Turley is a professor of public interest law at George Washington University and has served as lead defense counsel in national security cases.

Los Angeles Times (Sunday) December 22, 2013

55 thoughts on “The Case For A Pardon For Edward Snowden”

  1. Justice Integrity Project

    Have Spy Agencies Co-Opted Presidents and the Press?
    Posted: 23 Dec 2013 09:11 PM PST

    Fifty years ago yesterday, Dec. 22, former President Harry Truman warned the public against the Central Intelligence Agency’s excessive powers.

    Harry TrumanTruman, who led the way for the agency’s founding, wrote a Washington Post column entitled, “Limit CIA Role To Intelligence.”

    Truman, right, timed his column to be exactly one month after the assassination of President Kennedy, whose death has long been suspected in private by top-level Washington insiders as being linked to the agency and the foreign policy goals of the agency’s private sector patrons. (read more)[http://www.justice-integrity.org/]

  2. I know this is off topic…. But I have a question about this matter that I’m posting about…

    http://m.startribune.com/?id=212410131

    There is this mother that is going through a divorce and decides to take her and the 4 children’s lives ranging from 3 to 11…. She sits in the car with the engine running for about 2 hours and for some reason she turns the engine off. She is admitted to a psych facility and then about 120 or 90 days later is charged with 4 life offenses…. She is the sentenced to 25 years in the psychiatric hospital….

    OS or Mike S can you or anyone shed light on how this could happen…

  3. I stand with Mespo 727272 on this one. A ‘pardon’ is given to someone who did something wrong. Snowden, as far as I’m concerned, did nothing wrong except maybe go to work for a contractor at the NSA.

  4. Unfortunately, the US government has a long memory for those who have offended it, e.g., Cuba.

  5. ” So it is unlikely that we have anything close to the full story. ” (Robert Aronson)

    I can not argue that point nor the reasons you list in supporting it. The problem rests with the government’s credibility. They have cried “Wolf!” too often to be believed now. It is a petard of their own construction and the injury to themselves by the device they intended to use to injure others can not be denied. Blaming Snowden is denial of that reality.

  6. There are lots of things Obama should do but most certainly won’t. But don’t blame him. He is a brilliant and saintly man that wants to do the right thing always. But, according to Ray McGovern’s latest article, the CIA might assassinate the Imperial President again – just like they did back in the days of Camelot – if our dear leader were to act against the CIA’s interest.

    Assuming that the Satanic Secret Illumanati that manages the CIA also is running the NSA, Obama’s hands are tied on pardoning Snowden.

    Maybe we can get Pat Robertson to call God and get him to intervene. If that fails, we could get The Gypsy Woman to give Obama a Mojo Bag and an amulet to protect against the CIA’s evil Black Cat Bone.

  7. For me, in terms of personal satisfaction, the mission’s already accomplished,” he said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. Because, remember, I didn’t want to change society. I wanted to give society a chance to determine if it should change itself.” -Edward Snowden

    “Edward Snowden, after months of NSA revelations, says his mission’s accomplished” by Barton Gellman

    http://www.washingtonpost.com/world/national-security/edward-snowden-after-months-of-nsa-revelations-says-his-missions-accomplished/2013/12/23/49fc36de-6c1c-11e3-a523-fe73f0ff6b8d_story.html

    Excerpt

    People who accuse him of disloyalty, he said, mistake his purpose.

    “I am not trying to bring down the NSA, I am working to improve the NSA,” he said. “I am still working for the NSA right now. They are the only ones who don’t realize it.”

  8. Robert Aronson,
    General warrants… Why were the Founders unkind to them?
    And what is this, “thanks to Snowden only America has to defend itself…” About? Four initials; GCHQ. Not American.

  9. I can see where Robert Aronson is coming from on not being to swift to call Edward Snowden a hero out of concern that Mr. Snowden might have leaked bona-fide secrets to the Chinese or the Russians that actually damaged or risked the security of the citizens of the United States but my best estimate of what I perceive from all I have read is that Edward Snowden would not sell out the safety of the American People it is counter to someone trying to do to report abuses against the American population generally by the US government rather than directly aiding an enemy.

    Edward Snowden is not an Aldrich Ames who performed espionage for money. I wonder if he even had the “files” with him when he was in Russia, having given to a trusted source. I certainly don’t know for sure.

    I agree with the others aforementioned that it is completely hypocritical to want to string up Edward Snowden when there have been numerous abuses of the constition, civil rigths, and many deaths caused by our own government. But can we expect such persons in the administration to do otherwise given their track record?

  10. Gene H:

    “I do think though that would go to the man proper and the relevancy of charges, but I don’t think that negates the value of said service (intentional or no).”

    **********************

    An unintentional public service shines just as brightly as the intended kind.

  11. JD-b says, “Not one single bankster has been prosecuted during the Bush/Obama administration. That’s shocking when you consider about 2000 banksters were sent to jail during the savings and loan crisis of the 1980s.”

    “Shocking” is a good word. I personally like “revolting”.

    ___________

    Prof. Aronson,

    I cannot see where anyone could reasonably offer opprobrious comment for your advocating caution, especially couched in such equitable language. The proof is indeed always in the eating of the pudding. I say this while fully in personal agreement with Mark’s (mespo’s) comment of 8:28AM that Snowden has rendered a valuable public service. That, however, could be mitigated if Snowden’s motives were to be proven nefarious. I do think though that would go to the man proper and the relevancy of charges, but I don’t think that negates the value of said service (intentional or no).

  12. If Snowden is pardoned, it will not be until January 19th of 2017. He was just too embarrassing to this and prior administrations. And he is not going to stop leaking his eminence library of documents to come home and be spat upon. The best thing to do with Snowden is to ignore him. He has be come a man without a country by his own choice.

  13. Yeah Professor. Think about it. You seek a pardon after you have been convicted. There are charges pending. Dismiss with prejudice. End of story. Obama does not personally have to pardon him. Tell his nimwit Attorney General to dismiss with prejudice. Professor: respond here.

  14. Pardon?
    How about the Executive Branch of government dismiss the charges against Snowden. Then they will not have to pardon him.
    Keep it simple sailor.

  15. Our distinguished commenter above, Professor Robert H. Aronson, graduated from UVa and was an accomplished athlete and scholar. He excelled in soccer and lacrosse leading the Wahoos soccer team in scoring during the first of his three varsity seasons. Freshmen were ineligible then. Judging by his impressive CV he continued his interest in scholarly pursuits as well as athletics — not a typical career for a professor. Thanks for your perspective and for all the good memories of green grass fields in the late 60s. I never knew exactly what happened to you. Just felt certain it was good.

  16. Government has become a bizarroworld of good is bad and bad is good messaging. There is the current push by both parties to feed the rich and starve the poor. The wealthy are given tax havens, capital gains tax breaks, tax avoidance trusts and offshoring of US based corporate profits. On the other hand, congress cuts food stamps to poor children and ends unemployment benefit extensions in the dead of winter with historically high long-term unemployment and underemployment.

    Regarding Snowden, the message is reward the liars and punish the truth tellers. Banksters are being rewarded with huge bonuses just a couple years after bringing the word economy to the brink of calamity. HSBC was found to be laundering money for drug cartels, most big banks were part of liar loans, forged documentation, illegal auto-signing, foreclosing on those who were current, given billions$ in taxpayer dollars to help those facing foreclosure and simply pocketing the money. The list of crimes and misdeeds is endless, yet they are in the hip pockets of nearly every congressional ‘representative’. Clapper lies to congress, NSA officials lie about its all encompassing spying, US corporations lie to customers about their involvement with illegal NSA demands. Not one single bankster has been prosecuted during the Bush/Obama administration. That’s shocking when you consider about 2000 banksters were sent to jail during the savings and loan crisis of the 1980s.

    The truth tellers such as Gina Gray http://www.washingtonpost.com/opinions/dana-milbank-the-price-gina-gray-paid-for-whistleblowing/2013/08/20/9fe80c98-09cb-11e3-8974-f97ab3b3c677_story.html, Chelsea Manning, Aaron Swartz was mercilessly harrassed and fearing life in prison, Assange is unable to leave his asylum in an Ecuadorian embassy, Thomas Drake, William Binney and J. Kirk Wiebe http://www.usatoday.com/story/news/politics/2013/06/16/snowden-whistleblower-nsa-officials-roundtable/2428809/ are punished and harrassed for years and often cannot find employment.

    What’s most frightening is that so many people condone those bizarroworld policies.

  17. “A district court judge ruled that President Obama can’t lawfully keep hidden a foreign aid order he tried to shield via a claim of executive privilege, characterizing the move as a “cavalier” dodge of the Freedom of Information Act.”

    “The government appears to adopt the cavalier attitude that the president should be permitted to convey orders throughout the executive branch without public oversight … to engage in what is in effect governance by ‘secret law,’ ”

    Read more: http://www.washingtontimes.com/news/2013/dec/18/obama-cavalier-hiding-foreign-aid-order-judge-rule/#ixzz2oLRyjWxz
    By Cheryl K. Chumley
    The Washington Times

    Maybe Woolsey should hang the judge too?

  18. We, the People, will consider a pardon for President Obama and his Chief Liar Clapper– when and only when they admit their respective lies.

  19. A remarkable piece by Rebecca Solnit. The excerpts hardly do it justice.

    A Letter to Edward Snowden

    Prometheus among the cannibals.

    Rebecca Solnit
    July 18, 2013

    http://www.thenation.com/article/175339/letter-edward-snowden

    Excerpts:

    What’s striking about your words on video, Edward Snowden, the ones I hear as your young, pale, thoughtful face speaks with clarity and incisiveness in response to Glenn Greenwald’s questions, is that you’re not talking much about what you hate, though it’s clear that you hate the secret network you were part of. You hate it because it poisons what you love. You told us, “I understand that I will be made to suffer for my actions… [but] I will be satisfied if the federation of secret law, unequal pardon, and irresistible executive powers that rule the world that I love are revealed even for an instant.” You love our world, our country—not its government, clearly, but its old ideals and living idealists, its possibilities, its dreamers and its dreams (not the stale, stuffed American dream of individual affluence, but the other dreams of a better world for all of us, a world of principle).

    You told us where we now live and that you refuse to live there anymore:

    “I don’t want to live in a world where everything that I say, everything I do, everyone I talk to, every expression of creativity or love or friendship is recorded. And that’s not something I’m willing to support, it’s not something I’m willing to build, and it’s not something I’m willing to live under. America is a fundamentally good country. We have good people with good values who want to do the right thing. But the structures of power that exist are working to their own ends to extend their capability at the expense of the freedom of all publics.”

    Which is to say you acted from love, from all the things the new surveillance state imperils: privacy, democracy, accountability, decency, honor. The rest of us, what would we do for love?

    What is terrifying to the politicians at the top is that you may be our truest patriot at the moment. Which makes all of them, with their marble buildings and illustrious titles, their security details and all the pomp, the flags, the saluting soldiers, so many traitors. The government is the enemy of the people; the state is the enemy of the country. I love that country, too. I fear that state and this new information age as they spread and twine like a poison vine around everything and everyone. You held up a mirror and fools hate the mirror for it; they shoot the messenger, but the message has been delivered.

    “This country is worth dying for,” you said in explanation of your great risks. You were trained as a soldier, but a soldier’s courage with a thinker’s independence of mind is a dangerous thing; a hero is a dangerous thing. That’s why the US military has made the Guardian, the British newspaper that has done the key reporting on your leaks, off limits to our soldiers overseas. Whoever made that cynical censorship decision understands that those soldiers may be defending a set of interests at odds with this country and its Constitution, and they need to be kept in the dark about that. The dark from which you emerged.

    When the United States forced the airplane of Evo Morales, Bolivia’s democratically elected head of state, to land in Austria, after compliant France, Spain, Portugal and Italy denied him the right to travel through their airspace, all South America took it as an insult and a violation of Bolivia’s sovereignty and international law. The allied president of Argentina, Cristina Fernandez de Kirchner, tracked the incident in a series of tweets that demonstrated an openness, a principledness and a strong friendship between Morales, Ecuadoran president Rafael Correa and her. It was a little window onto a really foreign continent: one in which countries are sometimes headed by genuinely popular leaders who are genuinely transparent and governed by rule of law. It’s a reminder that things in our own blighted, corrupted, corporate-dominated country could be different.

    Edward Snowden, you rebelled because you were outraged; so many others are rebelling because their lives are impossible now. These days when we revolt, the new technologies become our friends as well as our enemies. If you imagine those technologies as the fire Prometheus stole from the gods, then it works both ways, for us and for them, to create and to destroy.

    I think of a man even younger than you, Edward Snowden, who unlike you acted without knowing what he did: 26-year-old Mohammed Bouazizi, whose December 2010 self-immolation to protest his humiliation and hopelessness triggered what became the still-blooming, still-burning Arab Spring. Sometimes one person changes the world. This should make most of us hopeful and some of them fearful, because what I am also saying is that we now live in a world of us and them, a binary world. It’s not the old world of capitalism versus communism, but of the big versus the little, of oligarchy versus democracy, of hierarchies versus swarms, of corporations versus public interest and civil society.

    There were rumblings that you had defected, or would defect, to China or Russia, but you had already defected when we became aware of your existence: you had defected from them to us, using the power you had gained deep within the bowels of their infernal machines to empower us. What will we do with what you’ve taught us? That’s up to us, but for anyone who thinks what you did was not threatening to those in power, just look at how furious, how upset, how naked our emperors now are.

    And you, Prometheus, you stole their fire, and you know it. You said, “Being called a traitor by Dick Cheney is the highest honor you can give an American, and the more panicked talk we hear from people like him, [Senator Dianne] Feinstein, and [Congressman Peter] King, the better off we all are. If they had taught a class on how to be the kind of citizen Dick Cheney worries about, I would have finished high school.”

    Someday you may be regarded as a Mandela of sorts for the information age, or perhaps a John Brown, someone who refused to fit in, to bow down, to make a system work that shouldn’t work, that should explode. And perhaps we’re watching it explode.

    The match is sacrificed to start the fire. So maybe, Edward Snowden, you’re a sacrifice. In the process, you’ve lit a bonfire out of their secrecy and spying, a call to action.

    I fear for you, but your gift gives us hope and your courage, an example. Our loyalty should be to our ideals, because they are a threat to the secret system you’ve exposed, because we have to choose between the two. Right now you embody that threat, just as you embody those ideals. For which I am grateful, for which everyone who is not embedded in that system should be grateful.

    Love,

    Rebecca

  20. I am not a blogger and very rarely respond to blogs and comments to blogs. However, I am a faithful reader of your blog and greatly appreciate your positions, cogent analyses, and most guest bloggers. However, I must admit to some concerns about the tidal wave of support for Snowden and calls for a pardon at least without learning all of the details first. E.g.: Why did he go to Russia and China first? Did he give them highly classified information that put our country in jeopardy such as giving Chinas hackers info that helps them attack computers in this country? Does virtually every major country have a similar monitoring system on other countries, including the US, so that singling out the US for outrage and embarrassment has seriously hurt foreign relations, when every country has a similar spy system, but thanks to Snowden, only the US is having to defend itself and (I would think) revamp and revise its spy network and protocol?

    In other words, it may eventually turn out that Snowden was a purely altruistic whistle blower, who should be praised and pardoned. But, until we know his motives, the degree to which his conduct severely harmed the interests of the US unnecessarily (i.e., in addition to exposing internal spying that should be condemned), whether he has provided classified information to our many enemies when he could have limited it to information necessary to help reform the system, etc. I think that heaping praise on him and calls for a pardon are way too premature. Ironically, any information that was purely helpful to those wishing to harm the US is likely to be sufficiently confidential that the government cannot reveal it without adding to the harm. So it is unlikely that we have anything close to the full story.

    Best wishes,

    Rob

    P.S. I didnt just put this response on the blog because I do not want to engage in a war of words with the many commentators on your blog. And, they are likely to jump on my seeming opposition to Snowden, when I am only calling for not reacting prematurely. However, I respect you enough to let you know my concerns with calls for a pardon when so much remains to be known.

    Robert H. Aronson Betts, Patterson & Mines Professor of Law Emeritus University of Washington School of Law William H. Gates Hall Box 353020 Seattle, WA 98195-3020 Phone: 425-242-1577 Email: robertaronson@mac.com

    1. @Robert Aronson: I think your thoughts are well taken, but the content and context (thus far) appears to be in favor of a man who has freed us from a certain power tyranny that is insidiously developing behind a veil of secrecy. The last time that happened we ended up with a rogue CIA, an assassinated president, and a morphed intelligence community that is now unmeasurable, and condones torture, drones and atrocity with the candor of an AstroTurf patriotism to condone the process…all behind closed doors.

      It is possible, perhaps, to even question whether Snowden is authentic? Most of the materials were too big to absolutely hide, and the scenario could actually be reverse from what you suspect. Maybe he is covert actions? HOW WOULD YOU KNOW>>>it’s ALL SECRET….!!!

      I question why a legal professor is not digging into the outsourcing of this entire National Security in the first place. As I noted above (comment) http://en.wikipedia.org/wiki/Booz_Allen_Hamilton the lowdown on Booz Allen / Carlyle is startling at the least. If National Security is breached, isn’t the question of a corporate structure owned by international shares and situated, for all intent and purposes, out of Dubai…an interest to you?

      Thanks for your contribution to this questioning seeking stream: I believe your comment opens up some serious sides that go unmentioned in pure consensus alignments and popular sentiment.

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