Obama should pursue leniency for Edward Snowden

As the White House prepares to turn its operations over to new occupants, some unfinished business remains. One problem in need of resolution is the fate of National Security Agency whistleblower Edward Snowden who is currently in exile in Russia.

Now that some time has passed, we have a clear understanding of Snowden’s actions and their impact. Whether or not a full pardon is appropriate, an evaluation of the facts make clear that he deserves leniency.

{mosads}Snowden’s actions led to a number of bipartisan reforms – a rarity in today’s hyper-partisan environment. By revealing the government had for years collected information about millions of Americans’ domestic phone calls, Snowden prompted Republicans and Democrats to join together to amend the Patriot Act to ban the practice.

As chief counsel to the Church Committee, which in the 1970’s conducted the most thorough investigation of intelligence agencies in U.S. history, I know intelligence agencies operating in the dark almost invariably trample Americans’ rights.

In a letter this week to President Barack Obama and Attorney General Loretta Lynch, a group of Church Committee staffers urged the Justice Department to negotiate with Snowden’s lawyers to forge an agreement for him to return to the U.S.

It was also Snowden who revealed what former NSA Director Keith Alexander’s “collect it all” approach meant in practice – the interception and filtering of international electronic communications, including those routed through overseas data centers for Internet companies like Yahoo! and Google.

It is undisputed that NSA “incidentally” sweeps up Americans’ communications by the millions through these “foreign intelligence” collection methods.

Snowden revealed the broad scope of NSA spying on foreign allies, leading Obama to implement the first ever reforms to afford foreigners privacy protections from surveillance.

The NSA, CIA, and Defense Department say that these disclosures caused harm to overseas intelligence relationships, while giving adversaries more knowledge about America’s capabilities. These claims should not be ignored. But justice demands that they be checked and then weighed against how Snowden’s revelations benefitted the American people.

Snowden’s case should also be compared with those of other intelligence officials who violated the law. 

Many in the national security establishment who committed serious crimes have received little or no punishment, including those who designed and implemented torture programs during the George W. Bush administration. Those actions caused far greater harm to America’s global standing than Snowden’s disclosures.

Leniency has also been common for high-level officials who disclosed, destroyed or mishandled classified information, including National Security Adviser Sandy Berger and CIA Directors David Petraeus and John Deutch. None of their actions aided the public like Snowden’s did, but recognition of their public service counted for leniency.

The House Intelligence Committee claims Snowden should have brought his concerns to superiors in NSA and to Congress. But Snowden knew that former NSA official Thomas Drake had tried to report his qualms about an NSA program through these “proper channels,” and then was charged with violating the Espionage Act.

More importantly, the Congressional intelligence committees had known for years about the programs Snowden exposed, but did nothing. Only public pressure fueled by Snowden’s disclosures galvanized change.

Also relevant to leniency is that Snowden showed prudence by furnishing his documents to media organizations instead of just posting them on the internet wholesale. Although the result may have been imperfect, the news outlets gave the government a chance to argue for redactions or withholding of materials that might truly cause harm.

It is also important to remember that Snowden is not in Russia voluntarily. He became stuck in Moscow three years ago after the U.S. revoked his passport. Snowden, an NSA contractor in Hawaii, leaked thousands of classified documents to the press. He first fled to Hong Kong and then attempted to fly to Latin America, on a flight that connected through Moscow. But the U.S. saw to it that he could not travel any further.

Snowden has been charged with violating the Espionage Act. But he cannot use whistleblowing in the public interest as a defense.

Under current law, the only way to weigh the public benefits of Snowden’s leaks is for the government to mitigate the charges through settlement discussions. The status quo is untenable. Neither Snowden nor the government wants him to remain in Russia.

There is no question that Snowden broke the law. But there is ample evidence that continuing to hold the line – that Snowden can only return if he faces a full bore prosecution – is neither just nor in the country’s best interests. 

Obama and the Department of Justice would do well to seek a fair, negotiated conclusion to the Snowden exile.

Frederick A.O. “Fritz” Schwarz is the Chief Counsel for the Brennan Center for Justice at NYU School of Law, former Chief Counsel to the Senate Select Committee to the Church Committee, and former New York City Corporation Counsel.

The views expressed by Contributors are their own and are not the views of The Hill.