In mid-November, President Barack Obama sat for a lengthy interview with Klaus Brinkbaumer and Sonia Seymour Mikich for Der Spiegel. The most interesting bit was the last question; Obama was asked if he was going to pardon Edward Snowden:
“I can’t pardon somebody who hasn’t gone before a court and presented themselves, so that’s not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.
“At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I’ve tried to suggest — both to the American people, but also to the world — is that we do have to balance this issue of privacy and security. Those who pretend that there’s no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don’t recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways.
“And those who think that security is the only thing and don’t care about privacy also have it wrong.
“We have to find ways in which, collectively, we agree there’s some things that government needs to do to help protect us, that in this age of non-state actors who can amass great power, I want my government — and I think the German people should want their government — to be able to find out if a terrorist organization has access to a weapon of mass destruction that might go off in the middle of Berlin.
“That may mean that, as long as they do it carefully and narrowly, that they’re going to have to find ways to identify an email address or a cell phone of a network. On the other hand, it’s important to make sure that governments have some checks on what they do, that people can oversee what’s being done so the government doesn’t abuse it. But we shouldn’t assume that government is always trying to do the wrong thing.
“My experience is that our intelligence officials try to do the right thing, but even with good intentions, sometimes they make mistakes. Sometimes they can be overzealous. Our lives are now in a telephone, all our data, all our finances, all our personal information, and so it’s proper that we have some constraints on that. But it’s not going to be 100 percent. If it is 100 percent, then we’re not going to be able to protect ourselves and our societies from some people who are trying to hurt us.”
As a constitutional scholar, Obama surely knew his answer was both deflective and deceptive. Of course he knows the president can pardon anyone. Gerald Ford, when he was president, granted Richard Nixon an absolute pardon before Nixon could even be indicted. Similarly, Jimmy Carter, on his first day as president, unconditionally pardoned thousands of Vietnam War draft evaders. And then, of course, Obama himself pardoned three indicted but not tried Iranian-Americans earlier this year when his administration was constructing the Iranian nuclear deal framework.
But Obama was flatly disingenuous when he said that Snowden or his lawyers could make his arguments in court. Snowden was charged under the Espionage Act that carries the sole prosecutorial burden of proving that defense information was disclosed to someone unauthorized to receive it. Snowden readily acknowledged disclosing information to journalists from the outset (and he was very careful not to put anyone in danger by doing so). The government wouldn’t even have to prove — or even so much as provide evidence — that the disclosure caused any harm. Snowden would be precluded from presenting any countervailing evidence at all. Under the Espionage Act, the motivation of a whistleblower — regardless of level of sincerity or urgency — is not allowed to be considered. Snowden wouldn’t even be allowed to cite the reforms that have resulted from his disclosure.
On 28 November, 15 members of the Church Committee sent President Obama and US Attorney General Loretta Lynch a memo specifically outlining why Snowden should be pardoned (.pdf; 71KB). The Church Committee convened in 1975 to investigate alleged illegal intelligence gathering and other activities by the US Central Intelligence Agency (CIA), US Federal Bureau of Investigation (FBI), and US National Security Agency (NSA) revealed in the wake of Watergate.
Memorandum for President Barack Obama [and] Attorney General Loretta Lynch co-drafted by Frederick A.O. (“Fritz”) Schwarz, Jr., Church Committee chief counsel and William Green Miller, Church Committee staff director (with 13 Church Committee signatories), 28 November 2016.
The Church Committee published 14 reports of its findings with specific recommendations for reform. As a result, President Gerald Ford issued Executive Order 11905 banning US-sanctioned political assassinations.
Since last September, the American Civil Liberties Union (ACLU), Amnesty International, and Human Rights Watch have been running an active campaign urging President Obama pardon Snowden. (Disclosure: I was an early signatory to the campaign).
President Barack Obama — like all previous presidents — is justifiably concerned about the legacy of his presidency. Should he make the surprising decision to govern like he campaigned, and pardon Edward Snowden, a plurality of Americans would be granted a sliver of hope in these most perilous times. Perhaps more importantly, heroic whistleblowers like Snowden would be more likely to come forward with their own crucial disclosures.
Only a 39 day window remains for President Obama to make this courageous and patriotic act of granting Edward Snowden a pardon before he leaves office.
Authoritative, canonical source: President Obama: Please pardon Edward Snowden.
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