Snowden Does Not Deserve the Threat He Faces

The last time I saw Edward Snowden, while on assignment for The Financial Times in September, he was not holding out any great hope that President Obama would show the kind of clemency to him that he just granted to Chelsea Manning.

Of course, he would prefer to return home to the United States: It was never his intention to be stranded in Russia, his passport revoked. Although a petition to pardon Mr. Snowden has now attracted more than a million supporters, he is a realist.

I had not met Mr. Snowden in June 2013 when I was the editor of The Guardian and we broke the first revelations from the National Security Agency documents he leaked revealing the scope of modern state surveillance. My decision to publish those and subsequent stories was based on the documents themselves and the public importance of what they disclosed.

I have since met Mr. Snowden on three occasions and have found him to be thoughtful, consistent, levelheaded and public-spirited. He regards the American Constitution with extreme reverence. He has accepted his exile as the price of what he, and others, see as principled action. His technical knowledge afforded him insights into how the power between the state and the citizen was being transformed, perhaps irrevocably.

Edward Snowden seen in a live video link from Russia in 2015. Credit Frederick Florin/Agence France-Presse — Getty Images

But since September 2016 Mr. Snowden’s position in Moscow has become more precarious — partly because he has criticized his host country and partly because no one can predict whether his continued sanctuary in Russia will be tenable given the unusual relationship between President-elect Donald J. Trump and President Vladimir V. Putin of Russia.

It is not difficult to imagine a scenario under which Mr. Snowden could be handed over to the United States authorities as a result of a deal between Mr. Trump and Mr. Putin. Mr. Trump has made it plain that — in contrast to his view of Julian Assange, the WikiLeaks founder — he considers Mr. Snowden to be a traitor and has implied that he should be executed.

Only President Obama can, in his last hours in office, prevent that. There are a number of reasons he should.

First, were Mr. Snowden to return to the United States, he would be charged under a problematic law — the Espionage Act, passed in 1917 to punish spies and saboteurs during World War I. Under the law, Mr. Snowden would be given no opportunity at trial to explain his motivation or the importance of his actions.

If he escaped the death penalty, he would most likely suffer a fate similar to what Ms. Manning faced, a decades-long sentence, for actions that, in her case, senior State Department and British intelligence officials now concede caused limited harm. As P. J. Crowley, the former assistant secretary of state, said this morning on BBC radio (at 2:38), “the ultimate damage to American national security was limited.”

Does anyone seriously think that what Mr. Snowden did was “espionage”? I’ve read the conspiracy theory. But I’ve also listened to seasoned intelligence operatives on both sides of the Atlantic. They, of course, disapprove of what he did. They believe he caused real damage by exposing intelligence sources and methods. But they are also sophisticated enough to understand that his motivation was not that of a spy or a traitor.

The more thoughtful among them — again while deploring his actions — go on privately to acknowledge that this was a debate that was inevitable. That it did have to be held in public. And that the security services, having engaged in that much more open discussion, have actually been able to place much that was secret and legally dubious on a more secure and open footing.

It is very difficult to argue, in light of all that has happened in the three years since the Snowden revelations, that there was no public interest in what he did. Numerous lawyers, judges, legislators, nonprofit organizations and academics have demonstrated the contrary. Even Eric H. Holder Jr., the former attorney general, acknowledged last year, “We can certainly argue about the way in which Snowden did what he did, but I think that he actually performed a public service by raising the debate that we engaged in and by the changes that we made.”

Aspects of what Mr. Snowden showed to be happening have been ruled illegal or unconstitutional going back many years. Laws have been scrapped, reformed or amended. Oversight has been strengthened. The revelations kick-started an overdue conversation among government, citizens and corporations about the poorly understood issue of encryption. President Obama’s mature response to the Snowden leaks — commissioning two reviews into government surveillance and how to balance security with civil liberties — assisted that process of understanding and engagement.

The point is this: It is possible to deplore the way Mr. Snowden went about his whistle-blowing while still acknowledging the extreme importance of his actions.

In that respect he is similar to figures such as Daniel Ellsberg — reviled at the time by the Nixon administration for his own act of whistle-blowing over Vietnam, but now broadly regarded as a person of admirable moral convictions who acted in the wider public good.

The widely endorsed Tshwane Principles on National Security and the Right to Information set out the global norms for resolving the conflicts between national security and whistle-blowing. It is difficult to read them and believe that Edward Snowden should spend the majority of his adult life in jail, far less face the possibility of the death penalty.

The critics of Mr. Snowden would claim he did real damage by leaking more documents than he needed to make his point. He is neither 100 percent saint, nor 100 percent sinner. There needs to be a balancing act in which the public good and harm can be weighed. And that is what neither the Espionage Act nor permanent exile allows.

Some have argued that Mr. Obama couldn’t pardon Mr. Snowden, since he hasn’t yet faced any form of justice. But the 1866 Supreme Court case “ex parte Garland” says that a pardon can be exercised at any time, including “before legal proceedings are taken.” Presidents Lyndon B. Johnson, George W. Bush and Jimmy Carter all issued pardons before prosecutions began.

President Obama might be able to pardon him for possible violations of the most serious crimes, like the Espionage Act, but leave open the possibility of prosecution on lesser charges.

There is one final thing. At the time of the Snowden disclosures, some people looked at the governments of the United States, France, Germany and Britain and shrugged. In a modern social democracy, with all its checks and balances, what was there to worry about?

Within days Mr. Trump will be in charge of the National Security Agency, a body with powers of control and surveillance over the individual far, far beyond anything Orwell ever dared to imagine. And within a year the far-right Marine Le Pen could have surveillance power in France.

I dare say President Obama felt extreme irritation, even anger, with Mr. Snowden back in 2013. But his actions in commissioning two reviews showed his awareness of the complex and important issues raised by the young former N.S.A. operative.

Now that a much less thoughtful president is about to take over the machinery of surveillance, it would be a final act of statesmanship to pardon the man who alerted us to the dangers ahead.

Alan Rusbridger is chairman of the Reuters Institute for the Study of Journalism.

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