White House Resists Pardoning Edward Snowden: He’s Not a ‘Whistleblower’

The big push accompanying Oliver Stone’s new biopic to pardon Edward Snowden doesn’t appear to be moving the White House.

“I don’t think it makes sense, because Edward Snowden is not a whistleblower. There actually is a specific process that is well-established and well-protected that allows whistleblowers to raise concerns that they have, particularly when it relates to confidential or classified information, to do so in a way that protects the national security secrets of the United States. That is not what Mr. Snowden did,” White House Press Secretary Josh Earnest said on Wednesday, as quoted by Politico. Earnest added:

And his conduct put American lives at risk, and it risked American national security. And that’s why the policy of the Obama administration is that Mr. Snowden should return to the United States and face the very serious charges that he’s been, that he’s facing. He will of course be afforded the rights that are due to every American citizen in our criminal justice system, but we believe that he should return to the United States and face those charges.

Earnest was directly responding to Snowden himself, on the day Snowden joined forces with Human Rights Watch, Amnesty International, and the ACLU to launch a website dedicated to securing a pardon.

“The question of whether I, as a whistleblower, should be pardoned, is not for me to answer. But I will say this: I love my country. I love my family. And I have dedicated my life to both of them. These risks, these burdens that I took on, I knew they were coming. And no one should be in a position to make these kind of decisions. That’s not the kind of place that we’re supposed to be,” Snowden said.

He sought to justify his actions by saying, “From time to time we see that governments redraw the boundaries of our rights behind closed doors. If we are to sustain a free society for the next century, we must ensure that whistleblowers can act safely.”

The New York Times carried an op-ed from Kenneth Ross of Human Rights Watch and Salil Shetty of Amnesty International, making the case for a pardon by saluting Snowden as “the American who has probably left the biggest mark on public policy debates during the Obama years.”

There is obviously a public interest in enabling the government to keep some national security information secret. But under international human rights law, the public interest — not any particular government’s interest — is crucial. The protection of national security and public order may provide legitimate reasons for not disclosing certain sensitive information, but suppressing embarrassing or disturbing news does not. No one should be prosecuted for exposing human rights violations. At the very least, there has to be a genuine opportunity to offer a public interest defense.

The enormous value of Mr. Snowden’s revelations is clear. What was their harm? Scant evidence has been provided for many officials’ ominous statements. Some officials have warned that the terrorism-related activity of certain groups has become harder to monitor, but the most dangerous adversaries have always taken precautions against surveillance, with at least one independent study showing little impact from the Snowden revelations.

What has changed is that since the staggering extent of government surveillance became known, the public has sought greater privacy, and corporations have begun to provide it on widely used platforms. No doubt, among the millions of users of encrypted technologies there are a few who hide criminal activity. But the rest of us just want our privacy back.

The editors of National Review passionately argued against the pardon, insisting that Snowden is “not a whistleblower, he’s a criminal.”

If Snowden is what he says he is — a whistleblower and a patriot — he will do what he should have done in 2013: surrender to the Justice Department and take his chances at trial, where he would have the opportunity to explain in full his actions and motives. Given the widespread sympathy he has garnered on both left and right, it’s hardly inconceivable that a trial would end with a hung jury and a favorable deal from the federal government.

With a few shameful exceptions, it has long been the policy of the Justice Department not to negotiate with fugitives. The Obama administration should not make an exception for Snowden just because he has the support of Susan Sarandon. In 2015, Sir John Sawyers, the former head of British intelligence service MI6, said that “Snowden threw a massive rock in the pool, and the ripples haven’t stopped yet.” That will be true for years to come. Edward Snowden is responsible for a grave security breach that has endangered America’s security. He should face consequences for his actions, like any other lawbreaker.

The National Review editorial argued that Snowden defenders like Ross and Shetty were much too quick to dismiss Snowden’s damage to American national security as inconsequential, noting that Snowden is still sitting on a large amount of material,  possibly over a million documents, that he has yet to disclose to the press. (The inability of the NSA to specify exactly how many documents Snowden stole is often cited by his supporters as evidence the charges against him are exaggerated.)

According to Congressional testimony from former Joint Chiefs chairman Gen. Martin Dempsey, the “vast majority” of these documents had “nothing to do with exposing government oversight of domestic activities,” but rather pertain to American “military capabilities, operations, tactics, techniques, and procedures.”

Writing at the Lawfare blog, Jack Goldsmith took a middle road, agreeing that Snowden’s revelations “forced the NSA to be more transparent and to better explain itself, demonstrated that it was acting with the full knowledge and support of three branches, resulted in its authorities being strengthened and its collection practices barely narrowed (and in some respects expanded), and overall enhanced its domestic legitimacy going forward.”

However, Goldsmith chastised Snowden supporters for pretending the “costs are zero” and the “damage to U.S. intelligence operations was anything but enormous.” He argued that Snowden’s attempt to justify his actions as consistent with his oath to defend the Constitution disintegrates upon contact with the vast amount of information he compromised that had nothing to do with NSA surveillance against innocent American citizens, including the sensitive security documents General Dempsey referenced.

Goldsmith also rejected Snowden’s claim of moral justification for technical violations of the law, arguing the harm Snowden inflicted upon entirely legitimate American intelligence efforts was profoundly immoral: “Snowden can act on whatever conception of American values he likes, but when acts in massive violation of criminal laws in ways that reveal lawful intelligence activities against adversaries and other legitimate intelligence targets, he cannot expect a pardon.”

“Pardoning the perpetrator of the most damaging leak by far in American history would send a clear signal of approval for what Snowden did and a clear signal about a lack of seriousness on the part of the government about its truly most important secrets,” Goldsmith added. “Those signals would affect the attitude of everyone in the intelligence community about the value of our most important secrets and would have a terrible impact on the government’s already-difficult ability to keep such secrets.”

The House Intelligence Committee sent a letter to President Obama on Thursday, signed by both Republican and Democratic representatives, urging him not to pardon Snowden.

The committee called Snowden a “serial exaggerator and fabricator” who “caused tremendous damage to national security,” citing its own multi-year investigation of his leaks and their effects. However, the bulk of this report remains classified, bringing the battle over Snowden’s fate, and legacy, back to one of its fundamental quirks: the need to preserve national security secrets makes it impossible to air a full public case against the man accused of inflicting tremendous harm by revealing national security secrets.