New York Times pushes clemency for Edward Snowden. Justified?

The case for some sort of clemency for Edward Snowden also involves a judgment on the National Security Agency's activities. If NSA phone metadata collections are held to be unconstitutional, the chance of a deal might rise.

Glenn Greenwald and Laura Poitras/The Guardian/AP/File
Fugitive and NSA-secrets leaker Edward Snowden, shown here in Hong Kong in a June 9, 2013, photo provided by The Guardian newspaper in London, is again a focus of controversy – this time over whether clemency is in order.

Should the United States government offer NSA leaker Edward Snowden some degree of clemency so he does not have to spend the rest of his life in exile, forever looking over his shoulder?

“Yes," says The New York Times editorial board, in perhaps the most high-profile defense yet of the famous fugitive. On Jan. 1, the Times published an editorial that argues that the information revealed by Mr. Snowden has had “enormous value” and launched a nationwide debate on government surveillance.

Snowden couldn’t just go to his superiors and work through channels to reveal NSA abuses, claims the Times, because legal protections for whistle-blower activities don’t apply to government contractors such as him. Meanwhile, there’s no proof his leaks have actually damaged US security, according to the paper’s editorial board.

“When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government,” writes the Times.

The British paper The Guardian has published an editorial with a similar point. This New Year’s push for mercy is likely to drive official Washington’s arguments over Snowden and his legacy, already heated, to new levels.

For instance, Business Insider political editor Josh Barro immediately fired back at the NYT’s logic, tweeting that it would be "terrible" to give Snowden a break along the lines laid out in the editorial, because to do would establish a dangerous precedent:

But the Atlantic’s Conor Friedersdorf, a longtime critic of the Obama administration’s surveillance and drone policies, fired right back at Mr. Barro, saying that pardons by definition deal with legal cases to which normal rules don’t seem to apply.

“They are meant to be used judiciously, on an ad hoc basis, in what are clearly exceptional circumstances,” Mr. Friedersdorf writes.

That’s just a taste of what security wonks will be tussling over. Of course we’ve got a couple of comments here ourselves.

First, any sort of negotiated deal with Snowden won’t happen quickly. That’s because, as a practical matter, it would probably have to wait until legal challenges to the NSA’s newly revealed activities have played out in the courts. The resultant legal framework could have a powerful effect on the inherently political nature of any Snowden clemency, after all. If the NSA’s phone metadata collections are held to be unconstitutional, his chances of a return to the US might rise. If not, it might be hard for any president to offer Snowden a deal he’d find acceptable.

Second (and related), your position on Snowden today likely depends on your snap judgment as to how history will judge the activities he revealed.

To the Times, and other clemency advocates such as the ACLU, he has laid bare widespread illegality and abuse. The NSA’s own internal auditor has judged that the agency exceeded its authority “thousands of times a year," writes the Times. The secret Foreign Intelligence Surveillance Court has rebuked the NSA for repeatedly providing misleading information about its surveillance activities.

“Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as [a recent] presidential panel recommended,” writes the Times editorial board.

Not everybody agrees with this judgment. Much of the coverage of Snowden leaks has exaggerated their reach, goes this view, while minimizing the effect of privacy safeguards that are already in place.

Washington Post opinion writer Ruth Marcus writes that her scale weighs against Snowden, for instance.

“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,” Ms. Marcus writes.

Finally, can we leave Snowden’s personality out of this? Marcus judges that he’s got an overblown sense of self and of the importance of his actions, and that’s a perfectly legitimate opinion to have, but should it bear on his clemency outcome?

Whistle-blowers are often difficult. So are politicians. It takes a pretty big ego to step into the public arena to take on big issues, for good or ill. By going public with his identity, Snowden ensured that a good share of the coverage of his actions would focus on himself. But maybe it’s the NSA and what it does, not Snowden, that’s most important to the nation.

While it may be easy to "despise and reject Snowden," it is "much harder to despite and reject the discussion he touched off," writes New York University journalism professor Jay Rosen on his "Pressthink" blog.

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