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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2019

The Last Frontier

= Subscribers only.
Sign in here.
Subscribe here.

A Play with No End

= Subscribers only.
Sign in here.
Subscribe here.

The Call of the Drums

= Subscribers only.
Sign in here.
Subscribe here.

Brutal from the Beginning

= Subscribers only.
Sign in here.
Subscribe here.

The Alps

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Last Frontier·

= Subscribers only.
Sign in here.
Subscribe here.

The San Luis Valley in southern Colorado still looks much as it did one hundred, or even two hundred, years ago. Blanca Peak, at 14,345 feet the fourth-highest summit in the Rockies, overlooks a vast openness. Blanca, named for the snow that covers its summit most of the year, is visible from almost everywhere in the valley and is considered sacred by the Navajo. The range that Blanca presides over, the Sangre de Cristo, forms the valley’s eastern side. Nestled up against the range just north of Blanca is Great Sand Dunes National Park. The park is an amazement: winds from the west and southwest lift grains of sand from the grasses and sagebrush of the valley and deposit the finest ones, creating gigantic dunes. You can climb up these dunes and run back down, as I did as a child on a family road trip and I repeated with my own children fifteen years ago. The valley tapers to a close down in New Mexico, a little north of Taos. It is not hard to picture the indigenous people who carved inscriptions into rocks near the rivers, or the Hispanic people who established Colorado’s oldest town, San Luis, and a still-working system of communal irrigation in the southeastern corner, or a pioneer wagon train. (Feral horses still roam, as do pronghorn antelope and the occasional mountain lion.)

Article
A Play with No End·

= Subscribers only.
Sign in here.
Subscribe here.

When I caught up with the Gilets Jaunes on March 2, near the Jardin du Ranelagh, they were moving in such a mass through the streets that all traffic had come to a halt. The residents of Passy, one of the wealthiest neighborhoods in Paris, stood agape and apart and afraid. Many of the shops and businesses along the route of the march, which that day crossed seven and a half miles of the city, were shuttered for the occasion, the proprietors fearful of the volatile crowd, who mostly hailed from outside Paris and were considered a rabble of invaders.

Article
The Call of the Drums·

= Subscribers only.
Sign in here.
Subscribe here.

The Great Kurultáj, an event held annually outside the town of Bugac, Hungary, is billed as both the “Tribal Assembly of the Hun-­Turkic Nations” and “Europe’s Largest Equestrian Event.” When I arrived last August, I was fittingly greeted by a variety of riders on horseback: some dressed as Huns, others as Parthian cavalrymen, Scythian archers, Magyar warriors, csikós cowboys, and betyár bandits. In total there were representatives from twenty-­seven “tribes,” all members of the “Hun-­Turkic” fraternity. The festival’s entrance was marked by a sixty-­foot-­tall portrait of Attila himself, wielding an immense broadsword and standing in front of what was either a bonfire or a sky illuminated by the baleful glow of war. He sported a goatee in the style of Steven Seagal and, shorn of his war braids and helmet, might have been someone you could find in a Budapest cellar bar. A slight smirk suggested that great mirth and great violence together mingled in his soul.

Article
Brutal from the Beginning·

= Subscribers only.
Sign in here.
Subscribe here.

Celebrity sightings are a familiar feature of the modern N.B.A., but this year’s playoffs included an appearance unusual even by the standards of America’s most star-­friendly sports league. A few minutes into the first game of the Western Conference semifinals, between the Golden State Warriors and the Houston ­Rockets—the season’s hottest ticket, featuring the reigning M.V.P. on one side and the reigning league champions on the other—­President Paul Kagame of Rwanda arrived with an entourage of about a dozen people, creating what the sports website The Undefeated called “a scene reminiscent of the fashionably late arrivals of Prince, Jay-­Z, Beyoncé and Rihanna.”

Article
The Alps·

= Subscribers only.
Sign in here.
Subscribe here.

A Toyota HiAce with piebald paneling, singing suspension, and a reg from the last millennium rolled into the parking lot of the Swinford Gaels football club late on a Friday evening. The HiAce belonged to Rory Hughes, the eldest of the three brothers known as the Alps, and the Alps traveled everywhere together in it. The three stepped out and with a decisive slam of the van’s side door moved off across the moonscape of the parking lot in the order of their conceptions, Rory on point, the middle brother, Eustace, close behind, and the youngest, ­Bimbo, in dawdling tow.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

“What’s the point?” said Senator Tim Scott, who is paid at least $174,000 per year as an elected official, when asked whether he had read the Mueller report.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Happiness Is a Worn Gun

By

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today