Edward Snowden would like to come back to the US, but he is only willing to do so if he feels he will get a fair trial. I’m honestly unsure why he believes he would not get a fair trial; it is, after all, an enumerated right. Many are now calling for a Presidential pardon for Mr. Snowden so that he can come home. These folks believe that he should not be punished because he provided a great service to us in disclosing a number of classified programs. A pardon is extraordinarily unlikely, and in my opinion is unwarranted. Let me explain:
Whistleblower Protection: If you haven’t read the Whistleblower Protection Act (Public Law 101-12, APR 10, 1989, as amended), I completely understand why. As is much law, a detailed read-through is an onerous task. (Luckily, most government agencies have people dedicated to working with you if you feel something needs to be made public, so one does not have to be a legal scholar to be a whistleblower.) Within the act, §1213(a) provides clarification regarding what kinds of disclosures the act protects. Initially it might appear that classified disclosures are summarily prohibited, but §1213(j) clarifies that there is, in fact, a channel through the Special Council to provide classified information to the “National Security Advisor, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate.”
If this seems too obscure for one to reasonably be aware of, there is also the Intelligence Community Whistleblower Protection act of 1998 (here referenced by the DoD Office of the Inspector general). There is further clarification in the Whistleblower Protection Enhancement Act of 2012 (APR 19, 2012), which devotes a large portion of its focus to making classified disclosures with legal whistleblower protection. If he didn’t know about any of this at the time he could have gone to his local Inspector General. There is simply no excuse for not using the proper channels for the type of concern Mr. Snowden alleges. It would have ensured the information was protected (more on that to follow) and made sure that he had legal protection. Instead he chose to break the law and flee the country. That might be adequate in itself to justify not pardoning Mr. Snowden, but I think there is more that is worthy of discussion.
Governing Laws: Mr. Snowden claims to have found many of our operations to be illegal. I believe he was mistaken. Laws regarding electronic surveillance go back to the Foreign Intelligence Security Act of 1978 (FISA – Public Law 95-511, OCT 25, 1978). Please feel free to read the original act, but understand that the focus is on foreign intelligence collection and threat deterrence. The law makes provisions for surveillance absent a court order, but only under certification by the Attorney General that the effort is focused on foreign actors and that it is unlikely to impact US persons. There were a few court cases that upheld the law as legitimate. However, there are a couple of Supreme Court decisions that are germane to the later application of this law as it relates to privacy. Smith v. Maryland (442 US 735 (1979)) and United States v. Miller (425 US 435 (1976)) form the basis of what is known as the “third party doctrine.” Basically, if you make your information available to a third party, it isn’t protected by the fourth amendment. This provides the basis for collection of data regarding communication events, but that excludes specific content. (This will be more important later.)
More recent law with which we all ought to be familiar includes the USA PATRIOT Act of 2001, Terrorist Surveillance Act of 2006, Protect America Act of 2007, and the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008. None of these laws or the programs that they underpin are without controversy. For example, an appeals court found an NSA program unconstitutional in May, 2015, only to have that decision overturned by a panel of judges in August of the same year. I think there is room for discussion about whether such programs ought to be legal, but at the time that Mr. Snowden decided to leak classified program information the efforts were legal. Most importantly: if one thought or thinks the laws were or are questionable, then by all means call them into question publicly. That is easy to do since the laws themselves are not classified. There was absolutely no justification in compromising classified data to questions the validity of unclassified legislation.
Operational Damage: The reason certain programs are classified is to prevent targets from understanding the details of how we find out information about them. The fact that the US conducts electronic surveillance is a matter of public record. As discussed in the previous prargraphs, specific classified details are unnecessary to the discussion of whether legislation is overreaching. So what was the impact? All of the details are not going to be publicly available any time soon – if ever – but the DIA offered an assessment back in 2014. Not only did exposure of specific means and methods for collection give enemies an opportunity to change tactics to avoid detection, but much of the information taken by Snowden (nearly 2 million files worth) related to ongoing military operations and clandestine collections. His leak put Soldiers and Intelligence Officers under the threat of imminent harm, and it dried up lines of information affecting national interests abroad.
Your Data: Most seem to think that Ed is a hero because he exposed efforts targeting US citizens. This based largely on the misunderstanding of what kind of data was being collected. Metadata is a small subset of a communications event. It might tell you that two entities were in contact for a specific duration of time, but will provide nothing of the content of the conversation. Content typically requires a warrant. Again, per the third party rule, this type of information does not receive fourth amendment protection. Most people were upset about a misperception and are now showering Snowden with praise and calling for a pardon on the same basis. The fact is, there aren’t enough people on the job to listen to all of our conversations. And, more importantly, all of your conversations are not being recorded.
I really dislike making this so Edward Snowden-focused, as I personally do not believe he is deserving of attention. Nevertheless, I think it warrants mentioning that his complaint was that his country might be spying on its people, and as a response he stole a boat-load of classified information, leaked it to the press, and then fled to Russia (via Hong Kong). That strikes me as hypocritical given Russia’s state security record. I also find it hypocritical that he made sure to come forward publicly, just to let us know that he did it, but it wasn’t about him. I speculate that, to him, it was always about him.
I realize that many won’t agree, so I welcome your well-reasoned disagreement. I have been known to change my mind when exposed to new information. Please let me know what I am missing and, if warranted, I will adjust accordingly.