In 2013, the Guardian and the Washington Post broke the story of clandestine surveillance programs conducted by the National Security Agency (NSA). The NSA is supposed to be conducting foreign intelligence operations, but it turns out its reach extended to US shores.
One of the most shocking revelations of these disclosures was that the NSA was engaged in the bulk collection of metadata from domestic US calls. As this program was secret from the public, and intelligence officials had perjured themselves to keep it that way, Americans had no idea the extent to which their own government was spying on them.
As a result of these revelations, Congress passed legislation aimed at reining in the bulk collection of metadata (though the tepid “reforms” ultimately failed to solve the problem). The Ninth Circuit Court of Appeals found that same bulk metadata collection to be illegal, and likely unconstitutional. Had the program’s existence not been revealed, the Ninth Circuit would never have known of the existence of the illegal surveillance program.
The journalists who revealed the program deservedly received a number of journalistic accolades, including a Pulitzer Prize. Their reporting would not have been possible, however, without the courage of Edward Snowden, the whistleblower who disclosed to them information about the programs. Given that these revelations were clearly in the public interest and resulted in legislative and judicial actions, one would expect that the man who made this possible would be lauded as a hero.
But the US national security state is not interested in serving the public interest in this way, not to mention its leaders are extremely vindictive toward those who cross it. For the crime of alerting the US people to the illicit activities of their government, Snowden was charged under the Espionage Act and driven into exile.
Today, there is some speculation that Donald Trump may pardon Snowden before exiting the White House. Prior to winning the presidency, Trump called Snowden a “traitor” and “spy who should be executed.” But the Trump era has been an extremely strange time for politics. Trump has escalated US regime changes efforts against Iran and Venezuela, ramped up US drone strikes and air wars, and was elected after a campaign praising torture and mass surveillance. One would think this would make Trump beloved by the national security establishment.
Yet Trump also believes he was the victim of a “deep state” conspiracy. Many of his liberal opponents believe Trump to be insufficiently antagonistic to Russia, leading them to team up with neoconservatives and ex-intelligence officials to ramp up rhetoric against the country. (The truth about Trump and Russia is quite the opposite of this liberal narrative: Trump has in fact started an arms race with Russia, increased US military spending, and, in a reversal of Obama-era policy, sent lethal aid to Ukraine.)
Given that Edward Snowden is someone who exposed the workings of the “deep state” and is absolutely loathed by the clique of intelligence professionals turned resistance grifters, Trump is the most likely president to pardon Snowden. This is in spite of the fact that his administration has followed the trend of prosecuting whistleblowers under the Espionage Act while taking the unprecedented step of prosecuting a journalist under this law. In general, Trump is not keen on press freedom.
Predictably, this speculation has fueled backlash from the sycophants of the national security establishment. Former intelligence professionals who escaped their years of service without prosecution for their crimes, and now trade on their past through lucrative positions with defense contractors and cable television channels, are in an uproar. Using their perches on television, where they regularly propagandize on behalf of the national security state, they have been venomous toward Snowden.
Chief amongst this crowd are resistance icons James Clapper and John Brennan. Clapper, of course, perjured himself before Congress when asked if the NSA collected US persons’ data. He has never been indicted. Brennan was head of the CIA when it spied on the US Senate for investigating CIA torture.
When Repulican Senator Rand Paul called for Snowden to be pardoned and noted Clapper’s perjury problem, Brennan leapt into action to defend Clapper and condemn Snowden. Brennan lamented both that anyone would both criticize Clapper and praise Snowden, accusing Paul of “disgrac[ing] the US Senate” by doing so. Paul, of course, has engaged in disgraceful behavior, including opposing stimulus checks, but it is undeniably true the Clapper perjured himself about the unconstitutional surveillance Snowden exposed.
Neither Clapper nor Brennan should be taken seriously by anyone. But the bizarre politics of the Trump era have produced bizarre results, transforming ex-spooks into #Resistance heroes and a brazen militarist like Trump into a Russian puppet. As a result, a pardon for Snowden, long the demand of civil liberties and press freedom groups, has become, in many liberals’ eyes, a far-right demand or evidence the president is a Russian agent.
Susan Rice, who served as a national security advisor under Obama and is slated to head the Domestic Policy Counsel under Biden, reacted to rumors Trump may pardon the exiled whistleblower by tweeting “I. Just. Can’t. Congratulations GOP. This is who you are now.”
Rice, of course, is wrong to be aghast at this possibility. Snowden absolutely deserves a pardon — even though Snowden himself has repeatedly stated that he does not want a pardon but a fair trial. As it stands, Snowden has little chance of a fair trial in the United States. Despite undeniably being a whistleblower who revealed illegal conduct, given the anti-democratic nature of the US legal system, Snowden’s conviction is all but assured.
War On Whistleblowers
Snowden is indicated under the Espionage Act. This World War I–era law was originally used to criminalize opposition to US participation in the war and was vital to crushing the Left of that time.
In recent years, it has taken on a renewed significance as the government’s charge of choice in a vicious war on whistleblowers and journalists. A whistleblower charged under the Espionage Act has no chance of mounting a reasonable defense.
The first and most famous whistleblower indicted under the Espionage Act was Daniel Ellsberg. He hoped to explain to a jury why he felt so moved to release the US government’s secret history of its war in Vietnam, the “Pentagon Papers.” Yet, when Ellsberg took the stand in his own defense and his lawyer asked why he leaked the Pentagon Papers, the judge intervened. Ellsberg’s attorney was barred from asking the question, and Ellsberg was prohibited from explaining himself.
The Espionage Act does not require the government prove a defendant acted with the specific intent to harm the national security or aid a foreign power — which is precisely what most people understand espionage to be. The courts have permitted an interpretation of the statute as follows: If someone has security clearance or otherwise signed a nondisclosure agreement, and they give information to a party who isn’t entitled to receive it, they have violated the Espionage Act. What that information was, whether the disclosure was in the public interest, or did any damage to national security is not relevant.
As a result, courts have barred defendants from even muttering the words whistleblower or introducing any evidence explaining their actions.
The court-martial of whistleblower Chelsea Manning illustrates many of the issues at stake. Manning pled guilty to a number of offenses related to the mishandling of classified information that potentially carried decades in prison. The government, not satisfied, put Manning on trial for violating the Espionage Act and “aiding the enemy.”
Aiding the enemy, unlike the espionage, required the government to prove something beyond the charge that Manning merely gave information to a journalist. As a result, Manning was acquitted of aiding the enemy but convicted under the Espionage Act.
Snowden admitted that he gave the NSA documents to journalists Glenn Greenwald and Laura Poitras. There is zero question about this. Based on this alone, Snowden is guilty under the law. A law like the Espionage Act has no place in a democratic society and should be amended, but it’s what Snowden is facing.
Before Edward Snowden, there was Thomas Drake, another NSA whistleblower who was charged under the Espionage Act. The government’s case against Drake quickly fell apart.
On the eve of the trial, they dismissed the most serious charges against him, including the counts under the Espionage Act. Drake has been an outspoken defender of Snowden. During a webinar I moderated for Defending Rights & Dissent, Drake explained to me how, given the unfair nature of the Espionage Act, it was simply not possible for Snowden to remain in the United States.
Many of Snowden’s detractors find it impossible to believe that a whistleblower seeking to fight for the best interests of the American people could now be seeking refuge in Russia. Such arguments have intensified since Russia has increasingly become the enemy du jour, with the Pentagon demanding even bigger budgets to thwart the threat of “great power competition.” Snowden’s presence in Russia can only be the evidence of something sinister, including perhaps that Snowden himself is a Russian agent.
But Snowden never intended to find himself in Russia. The US government stranded him there. This is conceded by former deputy NSA director Chris Inglis. Inglis pointed out that it seemed highly unlikely Snowden intended to wind up in Moscow, given the immense effort his lawyers made to get him out of the country. As far as the claims Snowden was a spy, according to Inglis, “I don’t think [Snowden] was in the employ of the Chinese or the Russians. I don’t see any evidence that would indicate that.”
The most likely destination for Snowden was Latin America. The US led a dramatic effort to prevent him from getting there by revoking his passport; then–Vice President Joe Biden personally called then–Ecuadorian president Rafael Correa, who heroically defied the United States and granted Austrian journalist Julian Assange political asylum, urging him not to do the same for Snowden.
When the United States believed Snowden may have been on board the plane of Bolivian president Evo Morales, France, Portugal, Italy, and Spain all denied Morales plane access to their airspace. Morales was forced to land in Austria.
During an ensuing thirteen-hour standoff, Austrian officials demanded to search the Bolivian president’s plane to see if the political refugee was on board. This unprecedented forcing down of the plane of the head of a sovereign nation demonstrates both the degree to which the United States is willing to go after Snowden, not to mention the imperial hubris at the heart of the NSA’s global machinations.
If Ever There Was a Case for a Pardon
If there ever was a case for a pardon, it is that of a national security whistleblower indicted under the Espionage Act. The US legal system is set up so that those who defy the secrecy of the national security state face harsh punishments with little recourse to vindicate their rights.
Snowden is not the only whistleblower to suffer this, and many other victims of the Espionage Act, including FBI whistleblower Terry Albury, drone whistleblower Daniel Hale, Reality Winner, and publisher Julian Assange, all deserve freedom. But there is no need to pit one worthy candidate against another.
The man who exposed one of the most secretive surveillance programs carried out by one of the world’s secretive spy agencies should be allowed to return home. This would be not just a victory for Snowden himself, but all those who aspire toward a democratic United States.