Should Obama cut a deal with Edward Snowden?

The New York Times and Guardian editorial boards say yes. But they're missing a key point.

Edward Snowden is still in Russia, protected under a temporary amnesty. The former National Security Agency contractor, who stole and released to journalists an enormous amount of classified material, made such a splash last year that he was TIME's runner-up for 2013 Person of the Year. Then, in a rare, extensive pre-Christmas interview with The Washington Post's Barton Gellman, Snowden said that "in terms of personal satisfaction, the mission's already accomplished."

"I already won," he added.

Gellman explained in his own interview with Washington Post national security editor Peter Finn that Snowden isn't unhappy in Russia — he likes spending time indoors, on the internet, and he can do that just fine in Moscow — but would probably be very happy to return home to the U.S. one day:

If Snowden returns home now, though, the U.S. government will arrest him on espionage and theft charges that could easily add up to a life sentence, if convicted, says The New York Times in an editorial. And if he stays on the run, "he faces the prospect of spending the rest of his life looking over his shoulder."

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear, and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community. [New York Times]

In mid-December, Rick Ledgett, the head of the NSA task force on Snowden's leaks, signaled he might be open to a deal in which Snowden gets amnesty for stopping the disclosures and helping secure the materials he took. That deal, or one like it, is the right way to end this chapter, The New York Times editorial board says. "President Obama should tell his aides to begin finding a way to end Mr. Snowden's vilification and give him an incentive to return home."

The Guardian — which published many of Snowden's biggest revelations — one-ups The Times, urging a full pardon for Snowden. "For all his background in constitutional law and human rights, Mr. Obama has shown little patience for whistleblowers," the British paper says in an editorial. "It is difficult to imagine Mr Obama giving Mr. Snowden the pardon he deserves," but Snowden's "act of some moral courage" deserves at least that much:

Presidents — from Franklin Roosevelt to Ronald Reagan — have issued pardons. The debate that Mr. Snowden has facilitated will no doubt be argued over in the U.S. Supreme Court. If those justices agree with Mr. Obama's own review panel and Judge Richard Leon in finding that Mr. Snowden did, indeed, raise serious matters of public importance which were previously hidden (or, worse, dishonestly concealed), is it then conceivable that he could be treated as a traitor or common felon? We hope that calm heads within the present administration are working on a strategy to allow Mr. Snowden to return to the U.S. with dignity, and the president to use his executive powers to treat him humanely and in a manner that would be a shining example about the value of whistleblowers and of free speech itself. [Guardian]

The New York Times and Guardian both mention approvingly the ruling by U.S. District Judge Richard Leon, who declared in December that the NSA's sweeping collection of U.S. telephone and email metadata is "almost Orwellian" and almost certainly unconstitutional. But only The Times dismissively notes that U.S. District Judge William Pauley in New York subsequently, and "unfortunately, found the dragnet surveillance to be legal." (University of Chicago Law Professor Eric Poser, writing at Slate, sides with Judge Pauley.)

The editorial boards of both papers, and Snowden's other defenders, are absolutely right that the NSA leaker has almost single-handedly launched one of the biggest public re-assessments of how the U.S. should balance privacy against national security. His leaks showed, and other documents those leaks forced into declassification confirmed, that Director of National Intelligence James Clapper lied to Congress, NSA oversight isn't as robust as people believed, and the NSA and its employees have really broad powers that they occasionally use in creepy ways here in the U.S.

But I doubt that is why the Obama administration is against cutting a deal with Snowden. Snowden didn't just unveil NSA overreach in the U.S. — the moral high ground his boosters place him on — he also told the world how America's biggest international spy agency works, where it operates, and some of the high-profile people it has targeted for surveillance.

This has caused the Obama administration no end of diplomatic embarrassment and trouble. It was also a form of forced unilateral disarmament: China's spy services don't have an Edward Snowden, nor do Russia's, Brazil's, Germany's, or any of the other friendly or not-so-friendly countries expressing outrage over Snowden's revelations. Business Insider's Josh Barro points this out:

Ruth Marcus at The Washington Post isn't a big fan of Snowden as an individual, calling him "insufferable," as well as "smug, self-righteous, egotistical, disingenuous, megalomaniacal, overwrought." But she sets that aside to tackle the big questions: "Is Snowden's massive theft justified by the degree of governmental intrusion he unveiled; the importance of the public discussion he provoked; the systemic shortcomings, if not outright failures, that both eroded adequate oversight and short-circuited the possibility of public debate absent his intervention?" She isn't convinced:

Your assessment might be different.... The intelligence community is reaping the bitter rewards of its combined aversion to transparency and its addiction to employing available technology to maximum potential. Yet the existing oversight, while flawed, is not as feckless as Snowden portrays it, and the degree of intrusion on Americans' privacy, while troubling, is not nearly as menacing as he sees it. In the government's massive database is information about who I called and who they called in turn. Perhaps the government shouldn't have it; surely, there should be more controls over when they can search it....

If the scope of Snowden's theft and subsequent disclosures had been as limited, my scale might balance in the opposite direction. But the theft was massive. The injury to intelligence-gathering is of equal magnitude. "I am still working for the NSA right now," Snowden announced. "They are the only ones who don't realize it." Orwell might have called that double-think. [Washington Post]

Ruth Marcus probably wouldn't cut a deal with Snowden. I doubt Obama will, either.


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