A “pardon Snowden” campaign was launched Wednesday, in conjunction with the Snowden film. Snowden himself made the “moral case” case for why he should be pardoned, and Tim Edgar made a much more powerful case. I remain unconvinced. I don’t think the President will, or should, pardon Snowden.
On the third anniversary of the Snowden disclosures, I wrote about how, despite their many costs, the disclosures strengthened the intelligence community. They forced the NSA to be more transparent and to better explain itself and overall enhanced its domestic legitimacy going forward. I was not kidding when I said that “[t]hese are but some of the public services for which the U.S. government has Snowden to thank.”
But to say that the intelligence community benefited from the Snowden leaks is not to say that the President should pardon Snowden, for the price of the benefits were enormously high in terms of lost intelligence and lost investments in intelligence operations, among other things.
Many Snowden supporters pretend that these costs are zero because the government, understandably, has not documented them. But it is naïve or disingenuous to think that the damage to U.S. intelligence operations was anything but enormous. Much remains unknown regarding the extent of the damage (because the intelligence community cannot publicly say much beyond generalities) and the specifics of Snowden’s actions and motivations (because DOJ is preserving a criminal prosecution).
We would learn considerably more information—from both sides, but especially from the government—if a criminal trial ever took place. And indeed it is hard for the public to even assess the case for a pardon until we know the full extent of Snowden’s crimes and the harms they caused.
Another difficulty in determining whether a pardon is warranted for Snowden’s crimes is that the proper criteria for a pardon are elusive. Oliver Wendell Holmes once declared that a pardon “is the determination of the ultimate authority that the public welfare will be better served by inflicting less” than what the criminal law specified. But how to measure or assess the elusive public welfare?
The Constitution delegates that task exclusively to the President, who can use whatever criteria he chooses. Many disagreements about whether a pardon is appropriate are at bottom disagreements about what these criteria should be. Some will question whether Snowden should be pardoned even if his harms were trivial and the benefits he achieved were great. Presidents don’t usually grant pardons because a crime brought benefits. My own view is that in this unusual context, it is best to examine the appropriateness of a pardon in the first place, and to ask how well Snowden’s stated justification for his crimes matches up with the crimes he actually committed.
A good place to begin is with my former colleague Geoffrey Stone’s analysis:
I think if [Snowden] had only disclosed the existence of the second 215 metadata program, then one might be able to make the case he did more good than harm because there were reforms adopted because of his disclosures. That’s a good thing. [….] The problem is he disclosed vastly more than that, involving foreign intelligence not of Americans but of individuals who aren’t American citizens in other countries. No changes were generally made in those programs and Americans don’t really care. But disclosing those programs has had a serious impact on their being as effective as they had been. I think he did a lot more harm than good.
Snowden has long claimed that he took an oath to “support and defend the Constitution” and he has implied that he was fulfilling this oath when he stole and distributed the documents. “The oath of allegiance is not an oath of secrecy,” he told Bart Gellman. “That is an oath to the Constitution. That is the oath that I kept that Keith Alexander and James Clapper did not.”
Snowden might plausibly argue that his exposure of the 215 program was genuine whistleblowing in support of the Constitution (even though the program was vetted by the three branches of government, its revelation sparked legal controversy and subsequent substantial reforms.)
What I do not get, and what I have never seen Snowden or anyone explain, is how his oath to the U.S. Constitution justified the theft and disclosure of the vast number of documents that had nothing to do with operations inside the United States or U.S. persons. (Every one of the arguments I read for Snowden’s pardon yesterday focused on his domestic U.S. revelations and ignored or downplayed that the vast majority of revelations that did not involve U.S. territory or citizens.)
To take just a few of hundreds of examples, how did his oath justify the disclosure that NSA had developed MonsterMind, a program to respond to cyberattacks automatically; or that it cooperates with intelligence services in Sweden and Norway to spy on Russia?
The Constitution clearly permits foreign intelligence surveillance, and our elected representatives wanted these obviously lawful practices to remain secret. These and other similar disclosures concerned standard intelligence operations in support of national security or foreign policy missions that do not violate the U.S. Constitution or laws, and that did extraordinary harm to those missions.
The most charitable moral/ethical case for leaking details of electronic intelligence operations abroad, including against our adversaries, is that these operations were harming the Internet, were hypocritical or contrary to American values, and Snowden’s disclosures were designed to save the Internet and restore these values. This is not a crazy view; I know many smart and admirable people who hold it, and I believe it is ethically and morally coherent.
But it is also not a crazy view to think that U.S. electronic intelligence operations abroad were entirely legitimate efforts to serve U.S. interests in a complex and dangerous world, and that Snowden’s revelations violated his secrecy pledges, U.S. criminal law and did enormous harm to important American interests.
Snowden can act on whatever conception of American values he likes, but when he acts in massive violation of criminal laws in ways that reveal lawful intelligence activities against adversaries and other legitimate intelligence targets, he cannot expect a pardon.
Read the rest of the story on Lawfare.
Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, a Senior Fellow at the Hoover Institution at Stanford University, and co-chair of its Working Group on National Security, Technology, and Law.
This article was originally published on Lawfare and reproduced with permission. It has been edited for clarity and brevity.
