Why Snowden Won’t (and Shouldn’t) Get Clemency

Military analysis.
Jan. 3 2014 2:54 PM

Why Snowden Won’t (and Shouldn’t) Get Clemency

He went too far to be considered just a whistleblower.

Snowden October 2013
A frame grab made from AFPTV footage, reportedly taken on Oct. 9, 2013, shows Edward Snowden speaking with retired U.S. intelligence workers and activists in an unidentified location. He may well end up in an unidentified location for a very long time.

Frame grab from AFPTV via AFP/Getty Images

I regard Daniel Ellsberg as an American patriot. I was one of the first columnists to write that Director of National Intelligence James Clapper should be fired for lying to Congress. On June 7, two days after the first news stories based on Edward Snowden’s leaks, I wrote a column airing (and endorsing) the concerns of Brian Jenkins, a leading counterterrorism expert, that the government’s massive surveillance program had created “the foundation of a very oppressive state.”

Fred Kaplan Fred Kaplan

Fred Kaplan is the author of The Insurgents and the Edward R. Murrow press fellow at the Council on Foreign Relations.

And yet I firmly disagree with the New York Times’ Jan. 1 editorial (“Edward Snowden, Whistle-Blower”), calling on President Obama to grant Snowden “some form of clemency” for the “great service” he has done for his country.

It is true that Snowden’s revelations about the National Security Agency’s surveillance of American citizens—far vaster than any outsider had suspected, in some cases vaster than the agency’s overseers on the secret FISA court had permitted—have triggered a valuable debate, leading possibly to much-needed reforms.

If that were all that Snowden had done, if his stolen trove of beyond-top-secret documents had dealt only with the NSA’s domestic surveillance, then some form of leniency might be worth discussing.

But Snowden did much more than that. The documents that he gave the Washington Post’s Barton Gellman and the Guardian’s Glenn Greenwald have, so far, furnished stories about the NSA’s interception of email traffic, mobile phone calls, and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls “worldwide,” an effort that (in the Post’s words) “allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.” In his first interview with the South China Morning Post, Snowden revealed that the NSA routinely hacks into hundreds of computers in China and Hong Kong.

These operations have nothing to do with domestic surveillance or even spying on allies. They are not illegal, improper, or (in the context of 21st-century international politics) immoral. Exposing such operations has nothing to do with “whistle-blowing.”

Many have likened Snowden’s actions to Daniel Ellsberg’s leaking of the Pentagon Papers. (Ellsberg himself has made the comparison.) But the Pentagon Papers were historical documents on how the United States got involved in the Vietnam War. Ellsberg leaked them (after first taking them to several senators, who wanted nothing to do with them) in the hopes that their revelations would inspire pressure to end the war. It’s worth noting that he did not leak several volumes of the Papers dealing with ongoing peace talks. Nor did he leak anything about tactical operations. Nor did he go to North Vietnam and praise its leaders (as Snowden did in Russia).

The New Yorker’s Amy Davidson, who has called on Obama to “pardon” Snowden, cited Jimmy Carter’s pardoning of Vietnam-era draft dodgers as “a useful parallel when thinking about Snowden’s legal situation.” This suggestion is mind-boggling on several levels. Among other things, Snowden signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information, and knew the penalties for violating the oath. The young men who evaded the draft, either by fleeing to Canada or serving jail terms, did so in order to avoid taking an oath to fight a war that they opposed—a war that was over, and widely reviled, by the time that Carter pardoned them.

There are no such extenuating circumstances favoring forgiveness of Snowden. The Times editorial paints an incomplete picture when it claims that he “stole a trove of highly classified documents after he became disillusioned with the agency’s voraciousness.” In fact, as Snowden himself told the South China Morning Post, he took his job as an NSA contractor, with Booz Allen Hamilton, because he knew that his position would grant him “access to lists of machines all over the world [that] the NSA hacked.” He stayed there for just three months, enough to do what he came to do.

Mark Hosenball and Warren Strobel of Reuters later reported, in an eye-opening scoop, that Snowden gained access to his cache of documents by persuading 20 to 25 of his fellow employees to give him their logins and passwords, saying he needed the information to help him do his job as systems administrator. (Most of these former colleagues were subsequently fired.)

Is a clear picture emerging of why Snowden’s prospects for clemency resemble the proverbial snowball’s chance in hell? He gets himself placed at the NSA’s signals intelligence center in Hawaii for the sole purpose of pilfering extremely classified documents. (How many is unclear: I’ve heard estimates ranging from “tens of thousands” to 1.1 million.)  He gains access to many of them by lying to his fellow workers (and turning them into unwitting accomplices). Then he flees to Hong Kong (a protectorate of China, especially when it comes to foreign policy) and, from there, to Russia.

This isn’t quite what it would have seemed in Cold War times. Russia and China are no longer our sworn ideological enemies. But in the realm of cyberconflict and cybersecurity, they are our chief adversaries; they hack, or try to hack, into American computer networks more than any other countries (and we hack, or try to hack, into theirs as well).

Did the Times editorialists review the statement that Snowden made to a human rights group in Moscow this past July, soon after Vladimir Putin granted him asylum? He thanked the nations that had offered him support. “These nations, including Russia, Venezuela, Bolivia, Nicaragua and Ecuador, have my gratitude and respect,” he proclaimed, “for being the first to stand against human rights violations carried out by the powerful.” Earlier, Snowden had said that he sought refuge in Hong Kong because of its “spirited commitment to free speech and the right of political dissent.” He also said, in his interview with the South China Morning Post, that he hoped to spread his cache of documents to journalists in every country where the NSA had operated. “The reality is,” he said on another occasion, “that I have acted at great personal risk to help the public of the world, regardless of whether that public is American, European, or Asian.”

Whistleblowers have large egos by nature, and there is no crime or shame in that. But one gasps at the megalomania and delusion in Snowden’s statements, and one can’t help but wonder if he is a dupe, a tool, or simply astonishingly naïve.

Along these same lines, it may be telling that Snowden did not release—or at least the recipients of his cache haven’t yet published—any documents detailing the cyber-operations of any non-allied countries, especially Russia or China, even though he would have had access to the NSA’s after-action reports on the hundreds or thousands of hacking campaigns that they too have mounted over the years.*

This leads to the ultimate question of what to do with Edward Snowden should the Russians spit him out when his asylum status expires and no other country picks him up. I should note that I do not side with the national-security extremists on this matter—former CIA Director James Woolsey’s thunderous remark on Fox News that Snowden “should be hanged by his neck until he is dead” or columnist Max Boot’s jibe that the only kind of plea bargain offered to Snowden should be “one that allows him to serve life in a maximum-security prison rather than face the death penalty for his treason.” These may be crowd-pleasing bits of theater, but they’re way over the top.

Snowden’s indictment, should he ever face one, will tally a long list of crimes, but treason—the one crime in this category that carries a possible death penalty—is unlikely to be among them. Treason is defined, and carefully circumscribed, in the U.S. Constitution, specifically in Article III, Section 3, which states:

“Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid or Comfort.” (Emphasis mine.) Whatever Snowden may have done, whatever damage he may have caused, he did not do this.

But what did he do exactly, why did he do it, and what consequences did his actions have? One could conceive a scenario in which top U.S. government officials offered Snowden a deal (as the Times editorial put it, “a plea bargain” involving “substantially reduced punishment”) if, among many other things, he fully answered those questions. Rick Ledgett, the NSA official in charge of damage assessment on the Snowden case, recently told 60 Minutes that he’d be open to “having a conversation” about clemency for Snowden in exchange for his assistance in securing the stolen documents still out there.

In his end-of-year news conference, President Obama distanced himself from Ledgett’s remarks, which were rather vague to begin with. (For one thing, it’s unclear how Snowden would go about securing the documents.) Still, prosecutors make deals with criminals all the time in exchange for their help in catching bigger fish or solving bigger problems.

Here are some questions that prosecutors or senior officials might ask Snowden—hooked up to a lie detector—as part of the preliminary steps in a “conversation” about a plea bargain (which, they’d no doubt make clear, would still involve several years in prison).

First, why did Snowden go to Hong Kong? Why did he go from there to Moscow? (Supposedly he had planned to catch a connecting flight to Havana and, from there, to Ecuador, but there are many ways to get from Hong Kong to Havana without going through Moscow.)

Second, according to the Russian newspaper Kommersant, Snowden spent three days at the Russian consulate in Hong Kong before booking his flight to Moscow. Is this true? What did he do there? Snowden later told the New York Times’ James Risen that he took no classified documents into Russia. Assuming that’s true, did he give them to Russian officials in Hong Kong? What did he talk to the Russians about? Did he request asylum, or did they offer it? (Kommersant quoted some Russian officials claiming the former, others the latter.)

If it turned out that Snowden did give information to the Russians or Chinese (or if intelligence assessments show that the leaks did substantial damage to national security, something that hasn’t been proved in public), then I’d say all talk of a deal is off—and I assume the Times editorial page would agree.

Third, whatever Snowden said or didn’t say to the Russians, they must have asked him a lot of questions—if not during his mysterious stay in Moscow (or wherever they’re currently keeping him), then during the month he spent in the transit lounge of Sheremetyevo Airport. It might be useful for U.S. intelligence officials to know what sorts of things the Russian intelligence officials wanted to know. Snowden could pick up some favor points by playing double (or triple) agent.

Fourth, Snowden claimed in an interview with the Post’s Barton Gellman that he raised concerns about widespread domestic surveillance with several of his colleagues and superiors in the NSA’s technological directorate. NSA spokesmen subsequently commented that they had “not found any evidence” supporting this contention, but this is hardly a definitive denial. Snowden should provide the names of those colleagues and superiors, and assurances should be offered that they not be in any way punished. If Snowden’s claim is true, at least that would show he tried to fix things from the inside before going out in the cold. That would offer something in support of his plea for whistleblower status.

But it’s unlikely that any of this will come to pass. Unless Snowden changes his stripes dramatically, he doesn’t seem inclined to cooperate with his former masters, whom he now depicts as threats to world peace. Nor, I suspect, would the U.S. government be inclined to cooperate with the likes of Snowden, especially given this administration’s intolerance of far less ambitious leakers and—more to the point—the deep layers of secrecy surrounding everything about the NSA.

My guess is, Edward Snowden will spend a very long time in Russia, in some other country ruled by an even more unpleasantly authoritarian regime, or in an American prison. At this point, the choice of where, or for how long, is up to him.

*Correction, Jan. 6, 2013: This article originally stated that Edward Snowden had not released any documents detailing the cyber-operations of any other countries. In fact, he leaked documents that detail the cyber-operations of Australia, Britain, Canada, and New Zealand. (Return.)