Snowden was naive, but he acted in the public interest
After a long, slow evolution of thought, I have reluctantly concluded that former US National Security Agency contractor Edward Snowden should be granted a presidential pardon.
This has nothing to do with Oliver Stone's movie about him, released this weekend, which I have not seen and know little about. Instead it reflects the complex competing considerations about, and implications of, his actions, as well as a genuine appreciation for the very real downsides of pardoning him.
I don’t naively view Mr Snowden as a hero, and I understand the serious negative consequences of both his own actions and a potential pardon.
His supporters and detractors both tend to paint a simplistic picture in which he is cast as either an icon of liberty or a dangerous traitor. In fact, there are powerful arguments both for and against his public disclosures of official secrets.
When his exposé first became public, I was appalled at the unconstitutional and illegal mass surveillance he revealed. But, I thought, it isn't, and cannot be, up to any individual to decide when and if the law should be broken and government secrets exposed.
Mr Snowden’s revelations surely had some very negative, as well as some very positive, consequences. They might have helped criminals and terrorists evade surveillance, and they have complicated – or even compromised – legitimate intelligence activities.
It’s hard to be certain, but there was almost certainly a cost, and possibly a hefty one.
Yet Mr Snowden unquestionably exposed excessive and abusive mass surveillance and violations of the privacy of millions.
Moreover, officials routinely lied to the public about the extent of mass surveillance. Just weeks before the Snowden revelations, and as he was overseeing these vast programmes, director of national intelligence James Clapper insisted in congressional testimony that the government was “not wittingly” collecting mass data on private communications.
Court rulings, new legislation and other reforms resulting from Mr Snowden’s revelations – especially regarding the misuse of the Patriot Act and section 702 of the Foreign Intelligence Surveillance Act, which were misinterpreted as authorising mass data collection of private communications – have provided crucial restorations of citizens’ rights.
These vital reforms, not to mention the indispensable debate about mass surveillance, that area direct consequences of his actions strongly suggest that the indisputable public benefits from Mr Snowden’s actions significantly outweigh the probable harm, which is hard to gauge.
Indeed, the far greater breach of public trust was on the part of the US government itself.
But if Mr Snowden is pardoned, could that send the message to any national security official that they are entitled to unilaterally determine what can and should be made public, provided they think the stakes are high enough?
The US government has legitimate secrets, and a pardon might be misconstrued as implying it is acceptable for officials to decide personally to reveal them. It’s therefore crucial that any pardon of him is presented as utterly exceptional.
A Snowden pardon could indeed have a range of negative effects on the culture and atmosphere within the US intelligence community. But that may be part of the price American society must pay for the unacceptable excesses he exposed and helped stop.
It is therefore the government, not Mr Snowden, that must bear primary responsibility for those costs.
The US constitution gives the president the authority to pardon because sometimes circumstances dictate that punishment, even for real criminal offences, is inappropriate, unnecessary, undeserved or not in the public interest.
Despite the probable downsides of both Mr Snowden’s actions and a pardon, this seems almost a textbook example of when such a pardon is appropriate.
His technically illegal actions did overwhelmingly more good than harm to the public interest. Without them, massive and abusive surveillance programmes would probably have continued and might well have intensified.
WikiLeaks, and especially its founder Julian Assange, which are grossly irresponsible and, I would argue, primarily a tool of the Kremlin, really represent the negative caricature of Mr Snowden painted by his detractors.
Yet Mr Snowden isn’t a hero or a martyr either, as his champions frequently suggest. Instead he is a deeply flawed man who seems to have fudged the truth on occasion and who not only broke the law but was, in many ways, reckless.
But the level of official malfeasance he exposed, and the “public service” – as former US attorney general Eric Holder put it – he performed through his revelations were of an infinitely greater magnitude.
It would be bizarre to regard the overall effect of an action as, on balance, invaluable, yet still want the responsible party to be mercilessly punished.
Mr Snowden needn’t be put on a postage stamp. His conduct has involved too many ethical and legal shortcomings for him to be celebrated.
However, given the overall context and consequences of his actions, he doesn’t belong in prison either. The only reasonable outcome now is a presidential pardon for Snowden.
Hussein Ibish is a senior resident scholar at the Arab Gulf States Institute in Washington
On Twitter: @ibishblog
Published: September 18, 2016 04:00 AM