On The Beach Boy’s Pet Sounds, Brian Wilson sings, “I guess I just wasn’t made for these times.” The 60’s were a volatile time as varied as the people who lived it. Even at the high point of his career, Wilson did not belong to the culture he was a symbol of. Flash forward nearly 50 years, to 2013. Edward Snowden, a system administrator for the NSA, begins to release documents revealing the bulk data collection of the NSA. Their tactics-dubbed “dragnet” by the media- startled the burgeoning online giant, as users now knew the extent of their government’s overreach (Harding). It’s difficult to say if Edward Snowden was made for these times. A talented and self-taught programmer, he seems to perfectly embody the digital age. He also embodies an old-fashioned yearning for small government and protection of personal liberties. Snowden is an anomaly, whose bold moral resistance to the NSA may have made him the most sympathetic person to ever leak classified documents. Still, bcause of his righteousness, Edward Snowden should be pardoned.
Snowden took an extra-legal channel in order to release his documents, but there is evidence suggesting that approaching Congress with a complaint would have prevented him from informing the public. He witnessed this first hand when Thomas Drake, a senior executive with the NSA, was unable to elicit any response from Congress. His goal was to alert them to the waste, illegal activities, and mismanagement he had observed during his seven years there (Smith). Frustrated, Drake took his complaints to private reporters. Like Snowden, he was tremendously cautious, encrypting the emails he sent back and forth in order to avoid detection. Unfortunately, his efforts would fail. In 2010, he was tried under the WWI-era Espionage act, which could have landed him 35 years in prison (Smithsonian). While a year of parole and 240 hours of community service would ultimately be his sentence, he was left professionally and financially ruined. Drake’s incident serves as a stark warning against using government channels to whistleblow (1).
Having proven the illegal behaviours of the NSA, Snowden’s whistleblowing can clearly be seen as a justified act worthy of a Presidential pardon. Started in 1978, the Foreign Intelligence Surveillance Act was created in order to grant legal clearance for electronic surveillance deemed too sensitive for a conventional court (Greenwald, 60). In a FISA ruling leaked by Snowden, the FISA court declared the NSA’s actions, “unconstitutional, and in violation of statutes regulating spying” (Greenwald, 60). Due to the top-secret nature of the court’s rulings, this information came as a revelation to those outside of the intelligence community. The document made resolving the legality of the NSA easier for investigative journalists and the critical public as well, proving that the agency had operated illegally under their noses. For those in the know, the report was even more damaging; the FISA court was infamous for giving clearance to virtually all NSA surveillance requests (Greenwald 223). Other courts have drawn up the same conclusions. In 2015, a three judge panel at the U.S Court of Appeals for the second circuit in Manhattan ruled that the Patriot Act did not grant the NSA permission to collect calling records in bulk, calling it an, “unprecedented contraction of the privacy expectations of all Americans (5).” This decision further damaged the reputation of the NSA, which was already suffering from the damning revelations of Snowden.
Condemnation of Snowden came not from the public at large, but members of the government he had exposed. And how is Snowden to be pardoned when those with the power to clear his name so greatly oppose him? Lisa Monaco, the President’s Homeland Security adviser, responded to a petition for Snowden’s pardon by saying, “come home to the United States, and be judged by a jury of his peers – not hide behind the cover of an authoritarian regime (6).” During his presidential bid during 2008, Barack Obama, who also voted for the Whistleblower Protection Act as a Senator, said “Often the best source of information about waste, fraud, and abuse in government is an existing government employee…willing to speak out. Such acts of courage and patriotism…should be encouraged rather than stifled…. We need to empower federal employees as watchdogs of wrongdoing and partners in performance (4).” Indeed, for his tall promises on the campaign trail, the Obama administration would be praised for its transparency in the years preceding the Snowden leaks. In 2013, Senator Ron Wyden asked the Obama administration’s senior national security official, Director of National Intelligence James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper’s answer was an unflinching, “No (Greenwald 63).” Wyden, who had knowledge similar to Snowden because of his position on the Senate Intelligence Committee, had for years tried to alert the idle public to the extent of the Government’s spying capabilities (Greenwald 60). But it was no use; for, unlike Snowden, Wyden’s warning of the Obama Administration’s “Secret interpretation of the law” had no evidence behind it (Greenwald 60). Only in hindsight would journalists and the public recognize the importance of his message. Aided by whistleblower suppression, the Obama administration managed to live up to Obama’s promise of, “The most transparent administration in US history,” whilst simultaneously expanding the illegal spying practices of the NSA (Greenwald 390). The Obama Administration’s habit of condemning dissenters is revealed in their harsh treatment of Snowden. Regardless of what he had done, Snowden was set to be condemned by the political elite.
Despite the suggestion from the President and others that Snowden was a cowardly saboteur, the administration’s lies and hypocrisy prove that Snowden had the legal authority to whistleblow through the press. Indeed, critics are quick to see Snowden’s exodus to Russia and attempts at avoiding trial by jury as proof of his guilt. Debbie Wasserman Schultz, head of the Democratic National Committee, called him a coward, while conservative columnist David Brooks called him the, “ultimate unmediated man,” whose “cynicism” had blinded him from seeing, “How to knit others together and look after the common good (Greenwald 403).” Indeed, writers and politicians all over the political spectrum were quick to judge Snowden, possibly as a result of the government’s demonization of him. The suggestion that he is a coward for fleeing fails to see the futility of any trial Snowden would stand in the U.S. This is because the Obama administration charged him under the Espionage Act (6). Just as Drake had been ruined by this obscure law, Snowden, too, could be made an example by it. This was due to a unique characteristic of the Espionage Act, by which those tried under it received no whistleblower protection (6). This meant that the intent of the leaker, the value of the information to the public, and the lack of harm caused by a leak would not be factored into Snowden’s case, destroying any viable defense he could have had (6). Moreover, Obama’s claims of having a transparent Administration which encouraged whistleblowing proved to be dubious. Snowden, who had hoped in 2008 that Obama would make good on his promise of limiting surveillance, was dismayed to find his administration expand it far beyond any previous administration. Reflecting on his disappointment, Snowden said, “I watched as Obama advanced the very policies that I thought would be reined in (Harding 59).” Adding insult to injury was the unequivocal “No” which James Clapper responded with when asked if the NSA collects data on millions or hundreds of millions of Americans (Greenwald 63). Snowden’s revelations proved that Clapper had lied to Congress, and by extensions the voters who appointed them. How could Snowden be demonized by an Administration whose legal infractions were so much greater?