Clemency for Edward Snowden

The NYT editorialized about Snowden yesterday, saying he deserved a much lighter punishment in light of his whistleblower status. The Atlantic responds to pushback from Business Insider’s Josh Barro:

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 Edward Snowden, or one of the lesser forms of forgiveness that the New York 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 any 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.

Go read it, there’s more.

Thanks to Karin Porter.