Moves to Curb Spying Help Drive the Clemency Argument for Snowden
By Peter Baker, NY Times, January 4, 2014
WASHINGTON—To the prosecutors pursuing him, Edward J. Snowden has committed espionage by divulging national secrets. But the growing backlash against government surveillance has spurred a spirited debate about whether he should be forgiven.
The whistleblower-versus-traitor argument has taken on a new dimension with recent moves to curtail the programs that Mr. Snowden revealed. A federal judge ruled that one program was probably unconstitutional, technology companies are demanding changes, lawmakers are considering restrictions, and even a White House panel urged modifications.
If the programs are so debatable, advocates for Mr. Snowden argue, then he should not be punished for bringing them to light.
"I absolutely think the tide has changed for Snowden," said Jesselyn Radack, a legal adviser to Mr. Snowden and a lawyer with the Government Accountability Project, an advocacy group. "All of these things taken together counsel in favor of some sort of amnesty or pardon."
But the call for leniency, proposed by a National Security Agency official, advanced by the American Civil Liberties Union and fueled by liberal newspaper editorial pages and television commentators, has made little headway in the White House or the Justice Department, which both reject it out of hand. Nor has it been persuasive to officials in the national security establishment, who warn that letting Mr. Snowden off the hook would set a dangerous precedent.
In interviews, a majority of the members of the White House review panel that recently recommended scores of changes to the surveillance programs to President Obama likewise dismissed the notion of exoneration for Mr. Snowden, even though they believed that the programs he disclosed should be curbed.
"His supporters say he may have violated the law, but it can be forgiven," said Richard A. Clarke, a former White House counterterrorism adviser who served on the panel. "I don’t think it can be. In any outcome here, he’s going to serve time. The only question here is how much."
As the debate plays out, Mr. Snowden watches from refuge in Moscow, where he fled last year after turning over classified documents to journalists from The Guardian and The Washington Post. Even after a lengthy interview published by The Post last month, little is known of his current life beyond his self-description as an “inside cat” who survives on ramen noodles and entertains sympathetic visitors but does not read the books they bring him.
Mr. Snowden claimed vindication last month after a judge ruled against the legality of a telephone metadata collection program detailed in the documents he disclosed. Another judge took the opposite position, but the conflict suggests that the matter is not as cut-and-dried as the government asserts, Mr. Snowden’s advocates said. The White House panel found “persistent instances of noncompliance” by the security agency but no “illegality or other abuse of authority” targeting domestic political activity.
Mr. Snowden’s disclosures are protected by the First Amendment, said Bruce Fein, a former Reagan administration lawyer who at one point represented Mr. Snowden’s father. “It prohibits government from punishing communications that expose government lawlessness whether or not the illegality is classified,” he said. “Calling government to account for breaking the law is a compelling civic duty of all citizens.”
The amnesty idea won widespread attention last month when Richard Ledgett, who leads an N.S.A. task force evaluating damage from the disclosures, said on the CBS News program “60 Minutes” that it was “worth having a conversation about” it to prevent further revelations.
That position won further attention in the last week with editorials in The Guardian and The New York Times urging clemency. Debates about the idea played out on CNN, ABC and elsewhere, and Anne-Marie Slaughter, a former State Department official in the Obama administration, posted a message on Twitter in favor of clemency.
But inside the White House and the Justice Department, Mr. Ledgett’s suggestion has been met with stony opposition. The administration has made no move to reach out to negotiate any kind of deal and makes clear that it has no plans to. Officials express nothing but antipathy for Mr. Snowden, whose disclosures, one argued, have caused Al Qaeda and its allies “to change their tactics.”
Under the Espionage Act, there is no whistle-blower defense that would allow Mr. Snowden to argue his innocence because he was justified in exposing wrongdoing.
"The irony is the Obama administration welcomes the debate but condemns the man who sparked the debate," said Anthony D. Romero, the executive director of the A.C.L.U. "The debate would never have happened but for Edward Snowden."
John D. Negroponte, a former director of national intelligence, said any changes to the programs would be relatively minor. “Whether it’s tweaked—and that’s what it’s going to be, tweaked—it doesn’t justify what Mr. Snowden did,” he said.
Among those who want to change the program are the five members of Mr. Obama’s review panel. Three opposed leniency for Mr. Snowden, including Mr. Clarke; Geoffrey R. Stone, a University of Chicago law professor; and Michael J. Morell, a former acting director of the C.I.A.
The other two panel members, Cass R. Sunstein and Peter Swire, took no public position. But Mr. Swire said the debate underscored how much the surveillance had polarized the country.
"One Silicon Valley person I spoke to on the question of whistle-blower versus traitor, his estimate was over 90 percent of the people in his company would say whistle-blower," said Mr. Swire, a professor at Georgia Tech. "And I don’t think I’ve met a person in the intelligence community who would say whistle-blower. This is one of the biggest left coast-right coast splits we’ve seen."