President Obama, You Do Have the Power to Pardon Snowden

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On a visit to Berlin this week, President Obama gave a wide-ranging interview to ARD and Der Spiegel, two prominent German outlets. Among other topics, the interview touched on his legacy in the United States and abroad and his thoughts on the coming Trump administration.

He was also asked directly whether he would pardon Edward Snowden (who is particularly popular in Germany). He answered:

I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.

A few things. First, the president can pardon anyone. Richard Nixon hadn’t even been indicted when Gerald Ford issued a “full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in” over the course of his presidency. Nor had the thousands of men who had evaded the Vietnam War draft, who were pardoned unconditionally by Jimmy Carter on his first day in office.

Surely President Obama is aware of this history, but he doesn’t need to go so far back – he himself pardoned three Iranian American men earlier this year in the framework of the nuclear deal with Iran. Like Snowden, the three had been indicted but hadn’t stood trial when they were pardoned.

Also, if Ed had followed the “procedures” of the intelligence community for internal complaints, he would likely have faced the fate of whistleblowers who came before him – dismissals, FBI raids, and indictments. It’s pure fantasy to think that his grievances – which weren’t about rogue NSA analysts, but rather mass surveillance programs approved at the highest levels of government – would have spurred any change at all, let alone the historic reforms we have all benefited from.

President Obama continues in the interview:

At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play.

The president long ago recognized that Snowden’s actions “will make us stronger.” He should also know that Snowden wouldn’t be able to say so to a jury.

Snowden is charged under the Espionage Act, a draconian World War I-era law that doesn’t distinguish between spies who sold secrets for profit to foreign governments, and whistleblowers who gave information to journalists in the public interest. In an Espionage Act case, the prosecution only needs to prove that the defendant disclosed defense information to someone unauthorized to receive it. Snowden has admitted to giving information to journalists. Anything else would be inadmissible.

As Snowden’s lawyer, the ACLU’s Ben Wizner has explained, this isn’t hypothetical. When Daniel Ellsberg stood trial under the Espionage Act, his attorney asked him why he decided to leak the Pentagon Papers to journalists. The prosecution objected to the mere question, and the judge sustained the objection. No matter the egregiousness of the government’s actions, a whistleblower’s motivation has no place in an Espionage Act trial.

That means that Snowden wouldn’t be able to explain why he felt the public should know what the NSA was doing, he wouldn’t be able to point to the federal courts that ruled against the NSA in the aftermath of the disclosures, and he wouldn’t be able to cite subsequent advances to cybersecurity. His conviction and severe punishment would be a foregone conclusion.

Snowden’s contributions to privacy, technology, and the public’s right to know are hard to contest. At present, all signs point to an incoming administration that will have gross disregard for privacy rights – of minorities, immigrants, foreign nationals, and Americans en masse. We’re going to need a lot more Edward Snowdens to be able to fight for our country.

In pardoning Snowden, President Obama would be helping to secure his legacy while sending a powerful message on his way out – that standing up to government abuse is a tradition we should treasure and take with us into the next four years.

posted November 18, 2016 by Noa Yachot

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