Some months ago, Edward Snowden wrote an appeal for clemency to the U.S. government, arguing that its “systematic violations of law" created "a moral duty to act.”
On New Year's Day, America's most influential newspaper officially agreed.
The New York Times editorial board dedicated one of its inaugural editorials of 2014 to the proposition that the former NSA contractor should be given a plea bargain or some other form of clemency. "Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight," the newspaper stated. "He may have committed a crime to do so, but he has done his country a great service."
The pushback was immediate. Josh Barro of Business Insider is among the editorial's smartest critics. He stated his dissenting position in a series of tweets late Wednesday. Here are a few of them:
This is nuts. Letting Edward Snowden off would set a terrible precedent that would encourage security breaches. http://t.co/mTRC0rPbaZ— Josh Barro (@jbarro) January 2, 2014
"It's OK to violate your security clearance if you have a really good reason" is a terrible rule, even if some leaks are desirable.— Josh Barro (@jbarro) January 2, 2014
@binarybits the question is: do you think it's good or bad if it becomes much harder for govt to keep secrets? My view is, bad, on net.— Josh Barro (@jbarro) January 2, 2014
The case for clemency for Snowden is a radical case against our diplomatic and intel apparatus, which people make oddly casually.— Josh Barro (@jbarro) January 2, 2014
Where this goes wrong is imagining that a plea bargain or some form of clemency (or even a presidential pardon) for Snowden would set a precedent or legitimize a general rule of any kind. It would not. The concepts of pardon and clemency are part our system precisely because there are instances when applying rules we've generally decided upon would be unjust and counterproductive. They are meant to be used judiciously, on an ad hoc basis, in what are clearly exceptional circumstances.
Snowden's leak meets those tests. Urging clemency for Snowden is not a radical case against our existing system of rules—it is an acknowledgment that, like all rules, ours are imperfect. One of the finest presidents, George Washington, pardoned farmers who took up arms against the federal government (!) to protest a tax on whiskey. He wouldn't have granted those pardons had he thought that he was making a radical case against the legitimacy of the U.S. government or setting a precedent for anti-tax insurrections. And it is difficult to argue that any such precedent was set, even at the dawn of the federal republic when norms were still being established.
Today, it is even more difficult to imagine that a pardon for Snowden, or one of the lesser forms of forgiveness the Times advocates, would cause other federal employees to imagine that they'd avoid punishment if, say, they made public the identities of American spies abroad or secret codes from the U.S. nuclear program. As a political matter, the fallout would be dramatically different. And it isn't as if plea bargains, grants of clemency, or pardons given to one man impose any sort binding precedent in the fashion of a Supreme Court ruling. In the unlikely event that forgiveness for Snowden caused anyone to start leaking other secrets, correcting the problematic "precedent" would be one swift prosecution away.
I trust that if the national-security state were drawing up a classified assassination list of American journalists even Barro would be amenable to a pardon for a federal employee who violated secrecy laws by leaking its existence to the press. He isn't opposed to forgiveness for any possible leaker—he just doesn't think Snowden in particular is worthy. So it seems to me that he doesn't just overstate the costs of a pardon for Snowden, he also neglects to acknowledge or address the unusually powerful reasons for granting one in this of all cases. When should a leaker of government secrets be forgiven rather than jailed? Here are some possible standards:
- When the leak reveals lawbreaking by the U.S. government
- When the leak reveals behavior deemed unconstitutional by multiple federal judges
- When a presidential panel that reviews the leaked information recommends significant reforms
- When the leak inspires multiple pieces of reform legislation in Congress
- When the leak reveals that a high-ranking national-security official perjured himself before Congress
- When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge.
The Snowden leak meets all of those thresholds, among others.
There is a final weakness in Barro's argument. He treats clemency for Snowden as if it would meaningfully weaken norms against leaking classified information even though people in power leak classified information all the time without being punished for it. Jack Shafer made this vital point at length in a column published almost immediately following the first stories sourced to Snowden. "Without defending Snowden for breaking his vow to safeguard secrets," he wrote, "he’s only done in the macro what the national security establishment does in the micro every day of the week to manage, manipulate and influence ongoing policy debates."