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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