The case for granting clemency to Edward Snowden is becoming louder and more
polemical. But it is becoming no more persuasive.
Both The New York Times
and The Guardian recently editorialized in favor of clemency for Snowden. In
espousing this position, neither newspaper disclosed its own stake in the
Both newspapers published classified material knowing that it was
stolen by Snowden in violation of the criminal law. Both are themselves – at
least under the terms of the relevant statutes – subject to criminal prosecution
for knowingly publishing classified material, though they may well be (and
should be) protected by the First Amendment.
Snowden has no such
protection under existing law, because he stole classified material and
disclosed it in violation of his lawfully binding agreement not to do
Both newspapers had an ethical obligation to their readers to reveal
their substantial interests in Snowden’s fate.
Both had possible
conflicts of interest which they failed to disclose.
Beyond these ethical
concerns, both editorials presented incomplete and deeply flawed cases for
clemency. It is of course true that Snowden’s theft of the classified material
and the subsequent publication of portions of it by the Times and the Guardian
have produced considerable good, in the form of debate, lawsuits and executive
But unless good ends always justify criminal means – which they
surely do not – there must also be consideration of the manner by which Snowden
achieved his commendable ends.
To begin, Snowden was not a
He did not commit treason by turning classified material over
Treason, as narrowly defined in the Constitution, does
not cover such conduct.
But neither is he a hero.
to be a whistle-blower who engaged in an act of civil disobedience.
qualify for such a designation, three criteria must be satisfied: First, the
criminal act must be committed as a last resort after all other non-criminal
means have been tried.
Second, the criminal act must be committed in such
a way as to cause the least harm consistent with the ends sought.
third, the civil disobedient must be willing to face the legal consequences of
his unlawful actions.
Snowden failed all three of these tests.
committed his crime as a first, rather than last, resort. He did not go to
Congress, to the courts, or to the executive with his objections to the NSA
He claims to have complained to two superiors, but that weak
claim, which has been hotly disputed, would not be sufficient to satisfy the
As to the second, he caused far more harm than necessary
to begin a public debate. He could have started by simply revealing the scope of
the NSA intrusions, without also disclosing the content of classified material.
This is especially true with regard to NSA surveillance of foreign leaders and
other non-American persons outside of the country.
Such surveillance is
entirely legal and unprotected by the Fourth Amendment.
foreign spy agencies monitor us, and we are entitled to monitor them, without
our employees taking the law into their own hands and disclosing our
Finally, Snowden ran away – with his stolen material. This made
it possible for Russia, China, and other countries to obtain access to our
secrets. It also provided Snowden with a golden bargaining chip with which to
negotiate a plea bargain. These are not the actions of a civil disobedient
willing to sacrifice himself for a greater good.
An outright pardon for
Snowden would set a terrible precedent. It would send a message to all Americans
with classified information that if they are dissatisfied with governmental
policies, they should feel free to call the Times or the Guardian and disclose
Snowden’s legal adviser has argued that Snowden
committed no crime because his oath to the Constitution trumps his agreement not
to disclose classified information. This argument, if ever accepted, would
establish an even more dangerous precedent: it would allow anyone who believes
that the government is acting unconstitutionally to break the law instead of
challenging it in court.
Moreover, Snowden took it upon himself to
disclose material that derived from perfectly constitutional intrusions on
foreign individuals. His questionable constitutional defense would not even
apply to those disclosures.
It is undoubtedly true that far too much
information is today subject to classification, but the remedy for
overclassification cannot be individual lawlessness, but rather a full review of
the criteria under which material is kept secret. There are necessary secrets,
as well as unnecessary ones. There should be debate about this important issue,
but in a democracy, these decisions are made by elected and appointed government
officials, not be aggrieved individuals.
The case for a plea bargain with
Snowden is far more complex. Generally our government does not enter into
negotiations with fugitives. Nor do we generally bargain with extortionists who
threaten to disclose more classified information. But there are always
exceptions to these rules, and a case can be made for bringing Snowden home,
with his stolen material, in exchange for some leniency.
statutes governing the theft of classified material are draconian, and the
sentence Snowden faces without a plea bargain may well be excessive, especially
in light of his benign motives. This argues in favor of some leniency, in
exchange for a guilty plea and full cooperation in the damage assessment that
the government is now conducting.
In sum therefore, the case for a pardon
is unconvincing. The case for a plea bargain is compelling but complicated by
the fact that Snowden remains at large with his stolen material. History may
well judge Snowden in a more positive light than that cast by our legal
That is often the fate of people who take the law into their own
hands in an effort to achieve a good result.
The bottom line is that
Edward Snowden is neither a traitor nor a hero, neither a devil nor an angel. He
is a man who used criminal means to achieve a positive end. The law should
recognize both the bad and the good in his actions and fashion an appropriate
and calibrated legal response.The author’s latest book is an
autobiography, Taking the Stand. A shorter version of this article appeared in