No Comment — August 12, 2013, 7:55 am

Obama’s Snowden Dilemma

How will the Obama Administration handle Edward Snowden’s case in the long term?

Illustration by Terry Stevenson, Harper's Magazine, December 1974

Illustration by Terry Stevenson, Harper’s Magazine, December 1974

In a Friday press conference, following months of ill-considered tactics in response to Edward Snowden’s leaking of information about global National Security Agency activities, Barack Obama finally acknowledged that concerns about the expanse of the NSA’s surveillance operations were legitimate, and that an important debate had indeed been triggered by the Snowden disclosures: 

Given the history of abuse by governments, it’s right to ask questions about surveillance⁠—particularly as technology is reshaping every aspect of our lives. I’m also mindful of how these issues are viewed overseas, because American leadership around the world depends upon the example of American democracy and American openness⁠—because what makes us different from other countries is not simply our ability to secure our nation, it’s the way we do it⁠—with open debate and democratic process. In other words, it’s not enough for me, as President, to have confidence in these programs. The American people need to have confidence in them as well.

Obama went on to highlight a series of changes he would support, which include amending the provision of the Patriot Act that the NSA has invoked to support its current surveillance programs and implementing measures to ensure that civil rights concerns are considered when surveillance requests are being reviewed. His administration also released two white papers, one prepared by the DOJ, the other by the NSA, that set out the purported legal basis for NSA surveillance activities, and that attempt to explain the activities themselves. And the administration promised to release, on August 21, a secret 2011 FISA court opinion that found a particular NSA surveillance program to be unconstitutional.

Such concessions had become necessary because of the Obama Administration’s many self-inflicted wounds on the issue. Instead of acknowledging the problems with the NSA programs⁠—by, say, admitting fully what the programs entailed, implementing legitimate privacy standards to keep them in check, or otherwise addressing the critical issue of the NSA’s self-arrogated power to trawl the communications of hundreds of millions of people who aren’t suspected of involvement in terrorism or criminal wrongdoing⁠—the Obama team chose to vilify Snowden and launch a public-relations offensive that was marked by mischaracterizations, oversimplifications, and rank falsehoods. (ProPublica assembled clips of six easily exposed prevarications uttered by senior officials⁠—including Obama himself⁠—in their rushed effort to swat down the initial scandal.)

Meanwhile, public-opinion polls were consistently showing that the American public accepted Snowden as a legitimate whistleblower; allied governments revealed to have been affected by the program were proving implacable; and an international boycott of the American telecommunications and Internet service providers who had acceded to the NSA’s requests loomed. Finally, Russia’s decision to grant Snowden temporary asylum meant that he wouldn’t fall into the net the Americans had been aggressively creating for him.

Obama’s concessions are unlikely to bring the controversy to a close, however. For one, he faces the question of what to do about Edward Snowden in the long term. On June 14, the Justice Department rushed out a series of charges against him for theft of government property and violations of the Espionage Act. (The complaint itself is under seal, but its essence can be gleaned from a coversheet that Justice Department attorneys⁠—in a moment of exquisite irony⁠—leaked to journalists.) But the president has now openly acknowledged that Snowden’s leaks paved the way for legitimate democratic dialogue on an issue that his administration had consciously and improperly attempted to keep out of the public’s view. He also admitted that concerns about the program are justified at least to some extent, and that some measure of reform is appropriate. Consequently, Obama has all but officially endorsed Snowden’s claim to being a bona-fide whistleblower⁠—a view that leading political figures on both sides of the aisle have endorsed, and that is shared by a clear majority of the American public. To prosecute Snowden under the Espionage Act would therefore present untenable risks for the government. He stands a chance of being acquitted almost anywhere in the country⁠—even in the Eastern District of Virginia, where the intelligence community would have the advantage of arguing before a prosecution-oriented bench.

And the government’s problems don’t end there. David Pozen, the author of an important recent study of how the U.S. government has historically dealt with leaks, notes that when the government vigorously prosecutes a person who is widely viewed as a legitimate whistleblower, it risks “a greater amount of unlawful disclosures, or at least a greater amount of destructive disclosures” as a result. A Snowden prosecution under the Espionage Act would clearly fit into that category, especially after Friday’s admissions.

This does not mean Snowden should get off scot-free. He violated his undertaking to keep government secrets, and he should never again be permitted to hold a security classification or to work for the government or any other entity that handles sensitive information. He may have forfeited any rights he had to pension and other benefits, and he may be subject to fines and some jail time. But the prosecutorial sledgehammer of the Espionage Act no longer seems appropriate to his deeds.

Once these charges have been withdrawn, Snowden may very well be prepared to return home to face his accusers⁠—and to shed some important light on the newly energized national discussion over the proper mission of the NSA. For Americans concerned about their disappearing rights of privacy, that would be a rare double victory.

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  • richard bittner

    We are now confronted with a government that insists upon continuing a “secret spy program” WHEN IT’s NO LONGER A SECRET. What is going on here? What good is a secret spy program that everyone knows about..What Agenda is being furthered here…catching terrorists or spying on Americans..? ……
    …..What kind of political masquerade or charade is the President attempting to fabricate here…now here, herein…He’s the leader of the “thefp REFORM THE SECRET SPY PROGRAM THAT EVERYONE KNOWS ABOUT MOVEMENT”…..Snowden had really nothing to do with it, like Al Gore and the internet, why it Was His idea in the first place. This is begining to remind me of the pathway of lies about WMD laid by the BUSH II administration prior to the Iraq invasion. The Obama administrations is both attempting a reality tion eyes. The oy effective and credible

    .

  • NewOrleans36

    neworleans36

  • NewOrleans36

    Why the need to recommend “fines” and “some jail time?”

    Has Edward Snowden not suffered enough with the anxiety associated with the fear that he will be caught and treated like another Bradley Manning (mental torture, as certified by a UN agency) and with the constraints on his movement?

    Moreover, why should someone be punished in a jail or with fines that he cannot pay when he benefited people around the globe by bringing forth irrefutable evidence of what the US was secretly and unconstitutionally doing to gather the majority of all emails, phone calls, facebook posts, Skype calls, and internet browser searches for inspection via a secret court with secret legal opinions?

    Is the author intimidated somewhat by the unsupportable calls of “traitor” from some of our leaders and therefore incongruously adds the “punishment” part to this article?

    Moreover, a very important aspect of this dragnet surveillance is that when data points multiply exponentially this unavoidably leads to large increases in false positives (innocent people being considered as suspects, in this case). This would decrease the effectiveness of NSA rather than increase it by distracting from the targets for whom there is probable cause.

    On the other hand, dragnet surveillance leads to huge waste of government funds to the great profit of contractors. Hence, just because of the hard evidence of the enormous waste of taxpayer money, Snowden deserves our thanks and no jail time or further impoverishment.

    • strangely_enough

      Let someone do time for torture (other than Kiriakou), and then maybe prosecuting Snowden might make a little sense.

      Until then, it just looks like rampant corruption.

    • H.P. Loathecraft

      “He may have forfeited any rights he had to pension and other benefits, and he may be subject to fines and some jail time.”

      The above does not appear to be a ‘recommendation’ but an observation.

  • Chris

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