Clemency for Torturers, but Not for Edward Snowden

Why pardoning the whistleblower would be more moral and legal than Team Obama's treatment of Bush-era interrogators
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Circa 2008, Barack Obama gave his supporters reason to believe that if he were elected, he would protect whistleblowers and obey U.S. law on the subject of torture.

He has disappointed on both subjects.

Long before Edward Snowden exposed mass surveillance on Americans by the NSA, the Obama Administration was aggressively persecuting former civil servants who blew the whistle on objectionable behavior during the Bush Administration.

On torture, President Obama laudably decided against restarting what he and Attorney General Eric Holder both declared to be an official program of illegal torture. But the Obama Administration has declined to investigate and prosecute the torturers. Even if the president were within his legal rights to exercise discretion and "look forward," letting torturers go free would be a historic injustice. In fact, Obama's torture policy is itself a violation of U.S. law. The Convention Against Torture was signed by President Reagan and ratified by the Senate. The torture treaty went into force in the United States on November 20, 1994. It compels an official investigation and referral of the torturers for prosecution. One purpose of the treaty is to ensure that these steps are not discretionary

What does it say about the Obama Administration, and the United States generally, that the architects of torture remain free, even though authorities have no legal discretion to absolve them, while Edward Snowden, who exposed various NSA surveillance practices, stands accused of being a traitor to the United States? Obama avers that torture is a moral abomination that made America less safe; he denies that water-boarding helped us in the War on Terrorism. He also knows that Snowden's revelations sparked what he called a needed debate on surveillance. Yet he rejects the notion of granting clemency to Snowden, even though he has the authority to pardon his release of classified information. 

Let's look squarely at what this means.

The Obama Administration has no plans to punish the people who undermined a core civilizational norm, let prisoner abuse trickle down the ranks into the military, needlessly subjected shackled humans to extreme physical depravity, and gave al-Qaeda leaders the most useful propaganda and recruiting tool imaginable. 

Meanwhile, U.S. officials have gone so far as to ground the plane of a foreign leader in their zealous pursuit of Edward Snowden, who revealed truths about U.S. surveillance practices that have caused no demonstrated physical harm to anyone, that a majority of Americans wanted to know, that revealed previously unknown violations of the law to congressional overseers and the public, and that have prompted at least two legislative reform efforts in the United States alone. 

Personally, I'd like to see Snowden pardoned. What even his critics should acknowledge is that calls to forgive his lawbreaking are on much firmer footing, both legally and morally, than the unlawful decision to absolve Bush-era torturers. Remember that the next time you see a politician or pundit insist that we can't let Snowden remain free, as Daniel Ellsberg did, out of concern for the rule of law. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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