Edward Snowden Deserves A Trial, Not A Pardon – Analysis

By George W. Croner

(FPRI) — On August 15, 2020, President Donald Trump announced that he would look into the possibility of granting a pardon to Edward Snowden, the former contract employee for the National Security Agency (NSA) who “perpetrated the largest and most damaging release of classified information in U.S. intelligence history.” It was a significant shift in attitude for this president who, in the years before his election, denigrated Snowden as a “traitor” and a “spy who should be executed.” After stealing in excess of 1.5 million documents from NSA databases, Snowden delivered a substantial amount of highly sensitive data on NSA’s communications intelligence activities to journalist Glenn Greenwald. In the United States, the Washington Post took the lead in publishing Snowden’s stolen secrets, which were then circulated by a host of media outlets worldwide.

Snowden’s activities, and their adverse impact on U.S. intelligence capabilities, were described in the public version of the “Review of the Unauthorized Disclosures of Former National Security Agency Contractor Edward Snowden” prepared by the House Permanent Select Committee on Intelligence (the “HPSCI Report”). At the time of Snowden’s disclosures in 2013 and at the time this report was released in 2016, the HPSCI had a Republican majority, and the HPSCI Report itself was signed by all 22 members, Democrat and Republican. As that bipartisan HPSCI Report observed, Snowden “caused tremendous damage to national security, and the vast majority of the documents he stole ha[d] nothing to do with programs impacting individual privacy interests—they instead pertain[ed] to military, defense, and intelligence programs of great interest to America’s adversaries.” Indeed, the intelligence programs that Snowden compromised represent the single biggest blow to U.S. communications intelligence activities since John Walker supplied the Soviet Union with stolen codes for nearly 20 years before being caught in the mid-1980s.

Trump’s musings on a possible Snowden pardon have engendered considerable commentary and, last week, The American Conservative weighed in with an opinion titled “Donald Trump Should Pardon Edward Snowden,” authored by Brian Darling, a former senior counsel and senior communications director to Senator Rand Paul. Senator Paul is a vociferous critic of foreign intelligence surveillance programs, and was last heard on the floor of the Senate in March 2020, threatening to filibuster a House-approved bill that would have extended several expiring Foreign Intelligence Surveillance Act (FISA) provisions. Paul has expressed sympathy for Snowden’s actions in the past. Paul also believes that the surveillance program conducted principally by NSA under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA), a program that provides more counterterrorism and counterproliferation reporting than any other U.S. intelligence source, unlawfully violates the privacy rights of U.S. citizens. No federal court has ever so held or agreed with any part of Paul’s opinions on these matters.

Senator Paul’s aberrant views on the constitutionality of electronic surveillance are relevant here only because they are shared by his former acolyte, Mr. Darling, who insists on attempting to find some sort of constitutional safe harbor for Edward Snowden’s treachery. Darling’s insistence that the Fourth Amendment to the Constitution barred the Patriot Act metadata collection program that was among the activities unlawfully disclosed by Snowden has never been accepted by the U.S. Supreme Court or any U.S. appellate court.

Was that Patriot Act metadata collection program reviewed after Snowden’s disclosures? Yes: and then subsequently modified, and renewed, by Congress in 2015. The modifications made by Congress certainly reflected a congressional unease with the scope of the metadata program as it was then operating under the existing Patriot Act authority. So, Congress modified the metadata program to address congressional and public concerns with its scope—principally by having the metadata remain in the custody of the various electronic service providers (e.g., Verizon) instead of being stored at NSA. The government was limited to accessing the metadata only pursuant to an order from the Foreign Intelligence Surveillance Court. The program then continued in this modified form until it was revealed in March 2019 that NSA had discontinued the program—not because of any concerns about its legality but because the government concluded that the intelligence benefits derived from its operation did not warrant continuing the collection given the persistent technical problems the metadata program always has presented for NSA.

The significance, in terms of assessing what Snowden did, however, is the unchallengeable truism that not one NSA surveillance program unlawfully compromised by Edward Snowden has ever been declared unconstitutional or discontinued because of a violation of the law—not the PRISM (now known as the “Downstream”) surveillance program, the “Upstream” surveillance program, nor the Metadata program. As the Privacy and Civil Liberties Oversight Board (PCLOB) concluded after its exhaustive post-Snowden review of the Section 702 program, and as remains true today, there has never been an intentional violation of the standards that govern the operation of the Section 702 Program—one of the most heavily regulated and tightly monitored undertakings conducted by the U.S. government.

There are those who mistakenly describe Snowden as “whistleblower.” He is not. It is time to put to rest the misconception that Snowden bears any resemblance, for example, to the Intelligence Community member who risked much in reporting the content of the conversation between Donald Trump and Volodymyr Zelensky on July 25, 2019. The HPSCI Report details the scope of Snowden’s compromises and discusses the notion of Snowden as a “whistleblower” in this way:

(U) Second, Snowden was not a whistleblower. Under the law, publicly revealing classified information does not qualify someone as a whistleblower. However, disclosing classified information that shows fraud, waste, abuse, or other illegal activity to the appropriate law enforcement or oversight personnel—including to Congress—does make someone a whistleblower and affords them with critical protections. Contrary to his public claims that he notified numerous NSA officials about what he believed to be illegal intelligence collection, the Committee found no evidence that Snowden took any official effort to express concerns about U.S. intelligence activities—legal, moral, or otherwise—to any oversight officials within the U.S. Government, despite numerous avenues for him to do so. Snowden was aware of these avenues. His only attempt to contact an NSA attorney revolved around a question about the legal precedence of executive orders, and his only contact to the Central Intelligence Agency (CIA) Inspector General (IG) revolved around his disagreements with his managers about training and retention of information technology specialists.

The HPSCI Report also debunks Snowden’s later public claim that he would have faced retribution for voicing concerns about intelligence activities. Instead, the HPSCI Report concludes laws and regulations existing at the time of Snowden’s actions would have afforded him protection from the retribution to which Snowden insists he would have been subjected. As the HPSCI noted, Snowden did not remain in, or return to, the United States to face the legal consequences of his disclosures. Instead, he fled to China and then to Russia, “two countries whose governments place scant value on their citizens’ privacy or civil liberties.” Some Snowden supporters claim the United States stranded Snowden in Russia by revoking his passport, but Snowden was in transit through Russia not to return to the United States, but rather to proceed on to Ecuador, a country that has demonstrated its willingness to provide safe haven for people being hunted by U.S. authorities and that, as Snowden knew, was then offering refuge to Wikileaks founder Julian Assange at its London embassy. Yet, there remains a coalition of Snowden apologists who continue to insist that Snowden “undertook great personal risk for the public good.”

On August 18, 2020, an editorial by Mike Rogers, a Republican, and Dutch Ruppersberger, a Democrat, appeared in the Washington Post. Rogers was the chairman and Ruppersberger the ranking minority member of the HPSCI when Snowden’s unauthorized disclosures were publicly revealed in June 2013. Here is their informed judgment on Snowden as a whistleblower and one deserving of recognition for serving the public’s interest:

In fact, at no point in his short career did Snowden take advantage of any of the proper whistleblower avenues that were available to him. Instead he stole classified data, fled the United States, and ultimately took up residence in Moscow, where an authoritarian regime welcomed him with open arms, and continues to do so.

Moreover, Snowden stole far more documents than those he claims alarmed him or prompted his dramatic response. He cherry-picked which documents to leak in a self-serving effort to craft a false narrative of patriotism and civil libertarianism. And in releasing documents without any context or background, he caused irrevocable harm to the United States’ relationships with its allies and future intelligence-collection capabilities.

As leaders of the House Intelligence Committee — privy to our country’s most sensitive intelligence information — we saw that damage firsthand. Snowden often portrays himself as a martyr or a hero, especially in the self-aggrandizing public lectures for which he has made $1.2 million in speaking fees so far. He is not the man of principle he wishes the world to see. His self-mythologizing is a disservice to the true patriots who, every day, step into the line of fire to defend our democracy and ensure our security. Snowden is a fugitive from justice and a useful pawn for Moscow’s agenda, and nothing more.

The absence of any substantive change to FISA predicated on, or ostensibly compelled by, Snowden’s disclosures corroborates the views expressed by Rogers and Ruppersberger. FISA has now been in place for more than 40 years, and FISA Section 702 was first passed over a decade ago, renewed by Congress in 2012, and then renewed by Congress again in January 2018—after Snowden’s public disclosure of the collection program. If any part of the FISA statutory structure is as constitutionally unhygienic or as legally flawed as Snowden and his fellow travelers insist, then it is reasonable to assume that some federal court, somewhere, sometime would have said so.

But, of course, quite the opposite has been true. Courts have consistently turned aside constitutional challenges to the Section 702 program, including to the incidental collection of those communications between U.S. persons and properly targeted foreigners located outside the United States. Judicial approbation of Section 702 is supplemented by the PCLOB’s review, which concluded that PRISM “is clearly authorized by the [FISA] statute.”

Edward Snowden deserves no pardon; a pardon would be an affront to every present and former member of the Intelligence Community who has faithfully served and taken their oath of nondisclosure seriously, to every nameless star on the wall at the headquarters of a U.S. intelligence agency representing one who has paid the ultimate sacrifice in service to their country. What Edward Snowden deserves is a trial because that is his constitutional right. And if he ever does set foot on U.S. soil again, there is a criminal complaint waiting with his name on it.

The views expressed in this article are those of the authors alone and do not necessarily reflect the position of the Foreign Policy Research Institute, a non-partisan organization that seeks to publish well-argued, policy-oriented articles on American foreign policy and national security priorities.

*About the author: George W. Croner, a Senior Fellow in the Program on National Security at the Foreign Policy Research Institute, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

Source: This article was published by FPRI