If the most famous U.S. government secret revealed by Edward Snowden had been the only one he divulged, deciding whether he deserves a pardon from President Barack Obama would be a tougher call.
Snowden famously disclosed in 2013 that the National Security Agency had been collecting Americans’ electronic metadata in bulk. The program was authorized only by a dubious reading of existing law, and when Congress debated the issue it insisted on changes to the program. So even though Snowden broke the law, he contributed to a worthwhile democratic debate.
But that’s not the whole story, as the University of Chicago law professor Geoffrey Stone has pointed out:
“The problem is he disclosed vastly more than that, involving foreign intelligence not of Americans but of individuals who aren’t American citizens in other countries. No changes were generally made in those programs and Americans don’t really care. But disclosing those programs has had a serious impact on their being as effective as they had been. I think he did a lot more harm than good.
“One example: One program lets the NSA gather email communications, including content of emails, not just phone numbers, targeting individuals who are not U.S. individuals, outside the U.S., where there’s reason to believe the communications relate to terrorist activities. They can gather large amounts of email content, in so far as they have reasonable grounds to believe it’s relevant to terrorist activity. Once disclosed, the terrorist knows this is going on and then takes measures to communicate in other ways.”
Jack Goldsmith, a Harvard Law School professor, argues that these other disclosures do not square with Snowden’s claim to have been acting in defense of the Fourth Amendment. They involved “standard intelligence operations in support of national security or foreign policy missions that do not violate the U.S. Constitution or laws, and that did extraordinary harm to those missions.” They also involved legitimate intelligence operations by our allies.
In these cases, I don’t think the argument for a pardon — that Snowden’s actions served a praiseworthy higher purpose that justified or mitigated his lawbreaking — can hold. Joshua Franco of Amnesty International pleads in Snowden’s defense that foreigners have privacy rights, too. Maybe they should, but how we should balance our country’s legitimate national-security needs against such considerations was not Snowden’s decision to make.
Katrina vanden Heuvel wrote in the Washington Post that Snowden conducted his lawbreaking “responsibly and with great caution,” and that he can’t be held responsible if journalists revealed secrets that had more value to terrorists than to the public. Actually, it is his fault, since he gave reporters those stolen secrets, apparently without reading them first.
In another Post op-ed — the newspaper has been hosting a debate on the issue since it ran an editorial against a pardon — Margaret Sullivan ignores the harmful disclosure of information about legitimate intelligence work in order to conclude that “Snowden acted carefully, responsibly and courageously — and squarely in the public interest.” Actually, much of what he did was reckless and without much connection to the public interest. The president will not and should not condone that recklessness.
Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of “The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.”