"New Yorker" Article Explores The Reasons For Giving Snowden Amnesty

DECEMBER 19, 2013

WHY EDWARD SNOWDEN DESERVES AMNESTY

POSTED BY AMY DAVIDSON

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Why should Edward Snowden be given amnesty? The question keeps coming up, but it can be hard to hear the answers amid the outbursts it provokes. That is a shame, because there are really two separate cases for why Snowden, a former National Security Agency contractor who passed a huge stash of secret documents to reporters, should be allowed to come back to America from Russia, where he has been since the summer, without facing time in jail. One case might be summed up as the good he has done for America, and the other as the benefits he can still offer the government. A problem is that those who support one may be put off, or even enraged, by the other. But, between them, they ought to be enough to get Snowden home safely.

First, those on the government side have to calm down, and also have to be truthful about what their interest in prosecuting Snowden—who has already been charged under the Espionage Act—or not might be. On Sunday, “60 Minutes” broadcast an interview in which Rick Ledgett, the N.S.A. official leading the task forces doing a damage assessment of Snowden’s leaks, said that “my personal view is, yes, it’s worth having a conversation” about amnesty. As for why, when he had just gone on at some length about how much harm Snowden had done, Ledgett suggested that it would be worth it if Snowden could stop any more secrets from coming out: “I would need assurances that the remainder of the data could be secured, and my bar for those assurances would be very high.”

That explanation is either dishonest or deluded. Snowden has said that he doesn’t have “the data” anymore; whether or not the government believes that, and even if there is also some insurance file in the cloud, it is well established that a number of journalists do have the data. Alan Rusbridger, the editor of the Guardian, has testified before a parliamentary committee that the paper has published only one per cent of what it has. And, as Rusbridger tried to explain when some officials from British intelligence came to the newspaper’s office to oversee the smashing up of various drives and other computer components, there are a number of copies, including in the Guardian’s American bureau.

Ledgett must know that the idea of Snowden giving back the secrets is a red herring—if he doesn’t, then the N.S.A.’s processing of what has happened to it is even more of a mess than it seems. But he and others in the government clearly think there are things Snowden can do for them. What might those be? For one, as Mark Mazzetti and Michael Schmidt of the Timesreported Sunday, the N.S.A. is not sure exactly which documents Snowden has given to reporters—just that there are many, many of them:

“They’ve spent hundreds and hundreds of man-hours trying to reconstruct everything he has gotten, and they still don’t know all of what he took,” a senior administration official said. “I know that seems crazy, but everything with this is crazy.”

This causes problems—which Snowden could help solve by giving them a catalogue. Mazzetti and Schmidt note that “government officials sometimes first learn about specific documents from reporters preparing their articles for publication—leaving the State Department with little time to notify foreign leaders about coming disclosures.” That is a more respectable complaint than what has clearly been another hindrance: not knowing what is in the hands of reporters has made it much harder for the N.S.A. to lie persuasively or effectively.

Not being able to lie without being called on it seems to have genuinely confused the N.S.A. The agency, it turns out, is not very good at talking around the truth in ways that are unfalsifiable—something one would have thought its officials had practiced, given their line of work. But maybe their reliance on secrecy has allowed their talent for ordinary obfuscation to atrophy. From James Clapper’s outright lie under oath to Senator Ron Wyden, which Ryan Lizza dissected in a long piece in the magazine, to statements about matters like the use of cell-site location data, the N.S.A. keeps looking laughable.

This is where some of Snowden’s supporters might hesitate. Does one want to give the N.S.A. the clarity it seeks, even in return for amnesty? After all, it could solve its lying problem just by telling the truth. And is there a potential for efforts at prior restraint—for the government to try to stop the publication of a particular piece of paper, if it knows it’s out there? Maybe, but the fight would be worth it. It is also possible that once the N.S.A. finally gets its mind around the scope of the leaks it will at least begin to come to terms with the greater transparency now demanded of it. We might also cut short the farce in which a claim meant to dismiss one document has to be thrown out when we see the next one.

There may be things in the documents that it would be genuinely dangerous to release, for reasons that might not be obvious from reading the documents, with their jumbles of code names, themselves. The Guardian, Glenn Greenwald, and the Washington Post, all of whom have documents, have done a good job so far of being mindful of that, which is a large reason why only a fraction have been published; indeed, it might be that a deal in which the government put aside some of its antagonism would get more information before the public, while better protecting the country. Another thing Snowden might be able to offer is some hints about the weaknesses in the N.S.A.’s system. Again, those who see this moment as one in which to break down all the regimens of secrecy might not be completely comfortable with the argument that an amnesty deal could help the government keep certain things hidden; still, it’s a decent one.

Opponents of amnesty talk about the danger of encouraging more Snowdens. What’s less clear is what they mean by that. This kind of leak, with this scale and historical reach, is rare; whatever deal he might get is unlikely to be offered to anyone who copies a few files. The best way the government can deter the reckless theft of documents is by doing something about overclassification, which has the unintended (but entirely foreseeable) effect of over-clearing people who need to deal with that data for their jobs. Or if, by more Snowdens, we mean people in government who are alarmed enough by extraconstitutional activities to risk their careers and their liberty, do we really need to fear more Snowdens?. The opposite seems likelier.

This brings us to the second case for amnesty: Snowden has done the country good; he has earned his freedom . That is a line of reason that some in the government will have a hard time accepting. But there are a dozen conversations that would not be taking place without his revelations—conversations with consequences, as illustrated by Judge Richard Leon’s finding, earlier this week, that the N.S.A.’s bulk collection of metadata is likely unconstitutional. Nor is it credible to say that Snowden could have done what he did without breaking the law, not when we have also learned that the normal instruments of oversight and judicial review were broken. When Clapper lied to Wyden, that sealed the case for amnesty.

Isn’t that why there is such a thing as amnesty—to square circles like these? Another option may be the related, slightly lesser absolution of a pardon (unlike an amnesty, it involves first saying that you were guilty). A pardon is what Jimmy Carter offered to young men who had evaded the draft for the Vietnam War. Their acts, too, were tied to protests against the logic of the war, and may offer a useful parallel when thinking about Snowden’s legal situation.

Snowden is a thirty-year-old who has to figure out the rest of his life. When a letter from Snowden to the people of Brazil, a few days ago, reminded everyone that he had asked for political asylum in that country, it was treated in some quarters as an act of public espionage. But Snowden has to live somewhere, and he has only a few months of temporary asylum left in Russia. If his prosecutors truly think he can hurt America by roaming the world, isn’t it worth giving something up to bring him back here?

It is supposedly often the mob on the street that is passionate and unruly; but in this story, the public is sitting down reading decisions and documents and diagrams of how data-flow works, while those trained in bureaucracy melt into airy rage. On Tuesday, James Woolsey, a former head of the C.I.A., told Fox News, “I think giving him amnesty is idiotic…. He should be prosecuted for treason. If convicted by a jury of his peers, he should be hanged by his neck until he is dead.” That sort of vindictiveness offers a glimpse of why Snowden does not just come on back and, as some blithely suggest, let the government do what it may. He might not—should not—even accept an amnesty on any and all terms, like ones that demanded his complete silence. That wouldn’t be particularly good for America either. Both sides need to let go of some passions; but when they do, both of their paths lead to amnesty.