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December 19, 2014
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Why Snowden won’t, and shouldn’t, get clemency

Former NSA contractor Edward Snowden.
By Fred Kaplan
Slate (*)
Former NSA contractor more than a whistle-blower

WASHINGTON — I regard Daniel Ellsberg as a US patriot. I was one of the first columnists to write that Director of National Intelligence James Clapper should be fired for lying to Congress. On June 7, two days after the first news stories based on Edward Snowden's leaks, I wrote a column airing (and endorsing) the concerns of Brian Jenkins, a leading counterterrorism expert, that the government’s massive surveillance programme had created “the foundation of a very oppressive state.”

And yet I firmly disagree with The New York Times’ January 1 editorial (“Edward Snowden, Whistle-Blower”), calling on President Obama to grant Snowden “some form of clemency” for the “great service” he has done for his country.

It is true that Snowden’s revelations about the National Security Agency’s surveillance of US citizens — far vaster than any outsider had suspected, in some cases vaster than the agency's overseers on the secret FISA court had permitted — have triggered a valuable debate, leading possibly to much-needed reforms.

If that were all that Snowden had done, if his stolen trove of beyond-top-secret documents had dealt only with the NSA’s domestic surveillance, then some form of leniency might be worth discussing.

But Snowden did much more than that. The documents that he gave The Washington Post’s Barton Gellman and the Guardian’s Glenn Greenwald have, so far, furnished stories about the NSA’s interception of email traffic, mobile phone calls and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls “worldwide,” an effort that (in the Post’s words) “allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.” In his first interview with the South China Morning Post, Snowden revealed that the NSA routinely hacks into hundreds of computers in China and Hong Kong.

These operations have nothing to do with domestic surveillance or even spying on allies. They are not illegal, improper, or (in the context of 21st-century international politics) immoral. Exposing such operations has nothing to do with “whistle-blowing.”

Many have likened Snowden’s actions to Daniel Ellsberg’s leaking of the Pentagon Papers. (Ellsberg himself has made the comparison.) But the Pentagon Papers were historical documents on how the United States got involved in the Vietnam War. Ellsberg leaked them (after first taking them to several senators, who wanted nothing to do with them) in the hopes that their revelations would inspire pressure to end the war. It’s worth noting that he did not leak several volumes of the Papers dealing with ongoing peace talks. Nor did he leak anything about tactical operations. Nor did he go to North Vietnam and praise its leaders (as Snowden did in Russia).

The Times editorial paints an incomplete picture when it claims that he “stole a trove of highly classified documents after he became disillusioned with the agency’s voraciousness.” In fact, as Snowden himself told the South China Morning Post, he took his job as an NSA contractor, with Booz Allen Hamilton, because he knew that his position would grant him “access to lists of machines all over the world [that] the NSA hacked.” He stayed there for just three months, enough to do what he came to do.

Mark Hosenball and Warren Strobel of Reuters later reported, in an eye-opening scoop, that Snowden gained access to his cache of documents by persuading 20 to 25 of his fellow employees to give him their logins and passwords, saying he needed the information to help him do his job as systems administrator. (Most of these former colleagues were subsequently fired.)

Is a clear picture emerging of why Snowden’s prospects for clemency resemble the proverbial snowball’s chance in hell? He gets himself placed at the NSA’s signals intelligence centre in Hawaii for the sole purpose of pilfering extremely classified documents. (How many is unclear: I’ve heard estimates ranging from “tens of thousands” to 1.1 million.) He gains access to many of them by lying to his fellow workers (and turning them into unwitting accomplices). Then he flees to Hong Kong (a protectorate of China, especially when it comes to foreign policy) and, from there, to Russia.

This isn’t quite what it would have seemed in Cold War times. Russia and China are no longer our sworn ideological enemies. But in the realm of cyberconflict and cybersecurity, they are our chief adversaries; they hack, or try to hack, into US computer networks more than any other countries (and we hack, or try to hack, into theirs as well).

But what did he do exactly, why did he do it, and what consequences did his actions have? One could conceive a scenario in which top US government officials offered Snowden a deal (as the Times editorial put it, “a plea bargain” involving “substantially reduced punishment”) if, among many other things, he fully answered those questions. Rick Ledgett, the NSA official in charge of damage assessment on the Snowden case, recently told 60 Minutes that he’d be open to “having a conversation” about clemency for Snowden in exchange for his assistance in securing the stolen documents still out there.

Here are some questions that prosecutors or senior officials might ask Snowden — hooked up to a lie detector — as part of the preliminary steps in a “conversation” about a plea bargain (which, they’d no doubt make clear, would still involve several years in prison).

First, why did Snowden go to Hong Kong? Why did he go from there to Moscow? (Supposedly he had planned to catch a connecting flight to Havana and, from there, to Ecuador, but there are many ways to get from Hong Kong to Havana without going through Moscow.)

Second, according to the Russian newspaper Kommersant, Snowden spent three days at the Russian consulate in Hong Kong before booking his flight to Moscow. Is this true? What did he do there? Snowden later told The New York Times' James Risen that he took no classified documents into Russia. Assuming that’s true, did he give them to Russian officials in Hong Kong? What did he talk to the Russians about? Did he request asylum, or did they offer it? (Kommersant quoted some Russian officials claiming the former, others the latter.)

If it turned out that Snowden did give information to the Russians or Chinese (or if intelligence assessments show that the leaks did substantial damage to national security, something that hasn’t been proved in public), then I’d say all talk of a deal is off — and I assume the Times editorial page would agree.

My guess is, Edward Snowden will spend a very long time in Russia, in some other country ruled by an even more unpleasantly authoritarian regime, or in a US prison. At this point, the choice of where, or for how long, is up to him.

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