Does Edward Snowden deserve mercy?

Amid calls that NSA leaker Edward Snowden be granted a degree of clemency to return home, the US appeared to open the door to a deal, and hints surfaced Russia would extend its asylum.

Dado Ruvic/Reuters
A man uses his cell phone to read updates about former US spy agency contractor Edward Snowden answering users' questions on Twitter in this photo illustration, in Sarajevo, Bosnia and Herzegovina, on Thursday.

Does Edward Snowden deserve mercy? That's the issue raised by calls for the US government to give the man who leaked National Security Agency (NSA) secrets some degree of clemency so that he can return to his homeland.

The New York Times and the British newspaper The Guardian have editorialized that the public value of the information Mr. Snowden has revealed means that he deserves better than a life of permanent exile. On Jan. 5, Sen. Rand Paul (R) of Kentucky said Snowden should face the possibility of a "few years in prison" for his leaks about NSA activities – not life in prison or the death penalty.

On Jan. 23 the US government opened the door a crack to some sort of Snowden deal. Attorney General Eric Holder, speaking at the University of Virginia’s Miller Center, said that if Snowden “wanted to come back to the United States and enter a plea, we would engage with his lawyers.”

Mr. Holder said the Justice Department would do the same for any defendant who wanted to plead guilty. But he did not specify what charges Snowden would need to accept guilt for under such circumstances.

In general, Snowden's proponents argue that he had little recourse but leaking to make his points. He told his superiors of his concerns about some agency overreaching, but they did nothing. As a contractor, he wasn't covered by federal whistle-blower protection laws.

By revealing NSA programs to The Guardian's Glenn Greenwald and other journalists, Snowden showed that the agency broke privacy laws and exceeded its authority thousands of times a year, according to The New York Times. "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," the Times editorial board wrote.

Snowden's critics argue that it is not clear that the NSA's activities are as nefarious as the Times makes out. There's a legal process to determine whether the NSA broke the law, and it is far from finished. So far, federal judges have ruled on both sides of that issue.

Plus, not all of Snowden's leaks dealt with possible invasions of US privacy. He revealed the extent and methods of US eavesdropping in China, British surveillance of South African and Turkish officials, NSA snooping aimed at various foreign leaders, and so forth. "He has, by individual fiat, leaked very extensive information," former Secretary of Homeland Security Janet Napolitano said Jan. 5.

As a practical matter, it is hard to see the Obama administration backing down and offering Snowden a deal – just as it is hard to see Snowden accepting any prison time at the moment. The possibility of clemency may not be clear until challenges to certain NSA activities play out in the courts.

Meanwhile, it appears that Russia may continue to host Snowden for the foreseeable future. Though his current asylum deal is limited to a year, a key Russian lawmaker hinted at an extension during a panel discussion at the World Economic Forum in Davos, Switzerland.

“He will not be sent out of Russia,” said Aleksei Pushkov, chairman of the foreign affairs committee of Russia’s lower house of parliament. “It will be up to Snowden.”

Snowden himself says there is no way he can return to the US, given that under current laws he would not be able to get a fair trial. In an online chat Thursday organized by a group raising money for his defense, Snowden said that in legal proceedings he would be barred from arguing that he acted in the public interest by revealing the NSA’s mass surveillance activities.

While returning to the US might be “the best resolution for all parties” said Snowden in the chat, “it’s unfortunately not possible in the face of current whistleblower protection laws.”

“My case clearly demonstrates the need for comprehensive whistleblower protection act reform,” Snowden argued.

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