The days leading up to last Friday’s release of director Oliver Stone’s Snowden looked like one long movie trailer.
The American Civil Liberties Union and other human-right groups on Wednesday announced a campaign to win a presidential pardon for Edward Snowden, the former National Security Agency contract employee who leaked hundreds of thousands of its highly classified documents to journalists. The next day, the House Intelligence Committee released a bipartisan letter to the president that advised him against any pardon and claimed Snowden “caused tremendous damage to national security.”
The week before, Stone had invited me to a private screening of his movie in Washington. I once worked in an NSA facility, and I’ve written about the agency for decades, so I was surprised and pleased by how successful Stone was in creating an accurate picture of life in the NSA.
He did a remarkable job of capturing the sense of how rare, difficult and risky it is for anyone in the agency to challenge the ethics and legality of its operations. I was astounded by Joseph Gordon-Levitt’s doppelganger-like portrayal of Snowden. At one point in the film, when the real Snowden appeared, it took me a moment or two to realize the switch.
Among others at the screening was a small group of former government employees who were whistleblowers before Snowden – and paid a high price for it.
The reason they had been persecuted is that U.S. law makes no distinction between revealing illegal government activity to the press about eavesdropping on Americans or engaging in torture, and betraying the country by passing secrets for money or ideology to foreign governments.
The Espionage Act was enacted nearly a century ago following World War One, and has already been amended several times. One key issue confronting the next president and the new Congress is whether the law needs to be amended again – this time to separate the whistleblowers from the spies.
The Snowden screening audience included William Binney, a 40-year veteran of the NSA. After the 9/11 attacks, Binney quit the agency because he objected to its illegal secret targeting of Americans.
He was later suspected of violating the Espionage Act by leaking information to the press about the agency’s illegal wiretapping. FBI agents showed up at his house with a search warrant. One agent pointed a gun at Binney as he was taking a shower. No charges, however, were ever brought.
Another former senior NSA official, Thomas Drake, was in the audience. He was also suspected of leaking information to the press and, as with Binney, the FBI raided his house. But Drake was later charged under the Espionage Act with five counts of unlawful retention of classified documents, among other charges.
Years of legal battles drove Drake into near-bankruptcy. His defense was able to show, however, that all the information Drake was charged with leaking was actually available in the public domain – and placed there by the government itself. (I was a member of the defense team.) As a result, the espionage charges were dropped and Drake pleaded guilty to a misdemeanor – “exceeding authorized use of a government computer.”
John Kiriakou was also at the movie screening. He was the first former official to confirm that al Qaeda prisoners were subjected to waterboarding, a practice the Obama administration considers torture. Kiriakou was later charged with three counts of violating the Espionage Act for leaking information to the press, among other charges. On Oct. 22, 2012, he pleaded guilty to one count of passing classified information to the media and was sentenced to 30 months in prison.
Stone came to my house for a drink after the screening that night. He asked about my own small experiences in whistleblowing.
I had spent three years in the Navy during the Vietnam War, I told him, assigned to an NSA unit at Pacific Fleet Headquarters in Hawaii. I was still in the Navy Reserve when I went to law school. During my two weeks of active duty I was assigned to an NSA listening post in Puerto Rico.
While there, I discovered that the agency was conducting warrantless eavesdropping on American phone calls. I later blew the whistle on this to a congressional investigation committee, led by Senator Frank Church, who conducted the Church Committee investigations into U.S. intelligence operations.
Years later, while I was writing The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organization, the agency threatened me with prosecution under the Espionage Act for refusing to return declassified Justice Department documents that had later been reclassified as “top secret.” The documents outlined numerous illegal actions by the agency.
I never returned the documents. No charges were ever brought against me, however, even though I eventually published details from them in my book.
Today, perhaps more than at any time in history, the battle lines have been drawn between those in government – both the executive branch and Congress – who view the theft of government secrets as espionage, regardless of the motive, and those in civil-liberties groups and the media who see motive as a critical distinction.
Since Snowden first revealed that he had taken the NSA documents, he has said he is willing to admit what he did was illegal and accept punishment – including time in prison. In the summer of 2014, I spent three days with him in Moscow for a cover story in Wired magazine and a PBS documentary.
“I told the government I’d volunteer for prison, as long as it served the right purpose,” Snowden told me as we sat eating pizza in a Moscow hotel room. “I care more about the country than what happens to me. But we can’t allow the law to become a political weapon or agree to scare people away from standing up for their rights, no matter how good the deal. I’m not going to be part of that.”
But the key question is: What is fair if the Espionage Act does not recognize acting in the public interest as a defense?
How fair is it if Snowden were not allowed to present as a mitigating circumstance the fact that because of his actions, Congress changed the law, to stop the government from secretly collecting billions of telephone records on every American all the time? How fair is it if he were not allowed to call as a witness, former Attorney General Eric H. Holder Jr., who has publicly acknowledged that Snowden “actually performed a public service.”
At the same time, how fair is it if Snowden’s actions, which caused positive change, were viewed as comparable to those of CIA officer Aldrich Ames or FBI agent Robert Hansson, who both sold secrets to Russia’s intelligence agency for cash, information that resulted in the death of Russians working covertly for the United States?
These Justice Department actions are odd and counterproductive. Particularly because the United States has no extradition treaty with Russia, which means Snowden is beyond the reach of U.S. law enforcement. Yet the administration does not respond when Snowden says that he is willing to discuss turning himself in.
Meanwhile, many in the intelligence community likely fear the kinds of documents that could emerge during the discovery phases of a trial or during witness testimony.
Snowden’s last best hope to return to the United States is probably a pardon from President Barack Obama, because both party nominees in the presidential election have expressed little sympathy for his situation.
“I don’t think he should be brought home without facing the music,” Hillary Clinton told CNN’s Anderson Cooper. Donald Trump, meanwhile, has said he would like to see Snowden executed.
“I think Snowden is a terrible threat,” Trump said on Fox & Friends in 2013, “I think he’s a terrible traitor, and you know what we used to do in the good old days when we were a strong country? You know what we used to do to traitors, right?”
One host interjected, “Well, you killed them, Donald.” Trump agreed.
These were the risks Snowden knew he was taking when he released the NSA documents. “It’s really hard to take that step,” he told me in Moscow, “not only do I believe in something, I believe in it enough that I’m willing to set my own life on fire and burn it to the ground.”
But Stone’s sympathetic portrayal of Snowden in his film may shift public opinion to a more positive view. The movie shows how Snowden evolves from a supporter of President George W. Bush and the war in Iraq into an NSA whistleblower as he gradually uncovers the agency’s massive illegal spying on Americans. So the picture might translate into more support for a pardon.
Only time – and strong box-office results – will tell.
James Bamford is the author of The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America. He is a columnist for Foreign Policy magazine.