Snowden Deserves Leniency (USA Today)

By Gregory Wallance 


October 9, 2014

Some positive reforms have resulted from his NSA disclosures.

I call them the “Snowden locks.” They are the new encryption features recently introduced by Apple and Google to address customer privacy concerns about snooping by the National Security Agency that was exposed by Edward Snowden.

FBI Director James Comey claims that the new security measures will put more personal data out of reach of law enforcement and hinder investigations. But can you blame Apple and Google executives for trying to address the concerns of consumers who buy their products?

Comey and the two companies are now discussing the FBI’s concerns. Given some of the positive changes that have resulted from Snowden’s disclosures, some legal leniency would seem in order for the former NSA contractor.

The charges against Snowden for leaking classified documents carry up to 30 years in prison. In his May interview with NBC’s Brian Williams, Snowden said that, while he wanted to go home, he did not want to “walk into a jail cell.” The Justice Department held to its position that he must spend time in jail. Then, in an interview published recently in Wired magazine, Snowden said he would return to the U.S. and “volunteer” for prison if it would “serve the right purpose.”

Sen. Paul weighs in

Supporters of leniency, such as Sen. Rand Paul, R-Ky., argue that Snowden should serve only a few years because his disclosures led to a robust public debate and substantial reforms. It’s likely that the Justice Department wants any plea agreement to provide for a lengthy sentence, perhaps in the range of 10 years to 15 years. (Chelsea Manning, the Army private formerly known as Bradley Manning who gave classified records to WikiLeaks, got 35 years after a court-martial.)

A principal justification for such a sentence is that, instead of breaking the law, Snowden should have used legitimate whistle-blower channels to voice his concerns. As President Obama has said, “There were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”

Actually, not so much.

John Napier Tye, a former State Department official who worked on global Internet freedom policy, recently tried to go through such channels because of his concerns about foreign surveillance by the NSA under an executive order issued in 1981 by President Reagan. The order allows the NSA to gather Americans’ overseas communications if the collection is an “incidental” consequence of the foreign surveillance. In 1981, however, e-mail didn’t exist, and Americans made comparatively few overseas calls. Today, the line between “domestic” and “foreign” is blurred because Americans and their enemies use the same global networks. And, while the NSA’s domestic telephone record collection is subject to oversight by Congress and theForeign Intelligence Surveillance Court, surveillance under Reagan’s order has no such oversight.

Trying ‘other avenues’

Tye was provoked by the administration’s failure to implement recommendations by the president’s own intelligence review group to increase protections for American’s overseas communications. In voicing his concerns, Tye did not violate any laws, did not steal or leak any documents, and did not flee the country.

Instead, he filed a whistle-blower complaint and wrote an article for The Washington Post about his concerns. Tye hired attorneys to make certain that he was complying with the laws that Snowden allegedly violated. In short, Tye did everything the president suggested Snowden should have done.

The NSA’s inspector general only wrote Tye a letter stating, “We have carefully reviewed your concerns and will incorporate relevant information gained during that review into our future efforts.” Likewise, Rep. Mike Rogers, the chairman of the House Permanent Select Committee on Intelligence, perfunctorily wrote Tye that “the committee has reviewed your allegations and has taken the action it deems appropriate in this matter.” Nothing in the public record suggests that any reforms have been implemented or even that a serious debate took place.

Snowden’s offense was a serious one. Even so, the reforms that resulted from his conduct and, as demonstrated by Tye’s experience, his lack of viable alternatives are powerful mitigating factors. Given Snowden’s apparent willingness to go to prison, a basis exists for a compromise on the sentence in line with Sen. Paul’s suggestion.

A lenient plea agreement will serve justice and bring this episode to a close.