January 8, 2014

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The biased and flawed case for Snowden clemency

01/07/2014 21:55   By ALAN M. DERSHOWITZ

History may well judge Snowden in a more positive light than that cast by our legal system.

The case for granting clemency to Edward Snowden is becoming louder and more polemical. But it is becoming no more persuasive.

Both The New York Times and The Guardian recently editorialized in favor of clemency for Snowden. In espousing this position, neither newspaper disclosed its own stake in the case.

Both newspapers published classified material knowing that it was stolen by Snowden in violation of the criminal law. Both are themselves – at least under the terms of the relevant statutes – subject to criminal prosecution for knowingly publishing classified material, though they may well be (and should be) protected by the First Amendment.

Snowden has no such protection under existing law, because he stole classified material and disclosed it in violation of his lawfully binding agreement not to do so.

Both newspapers had an ethical obligation to their readers to reveal their substantial interests in Snowden’s fate.

Both had possible conflicts of interest which they failed to disclose.

Beyond these ethical concerns, both editorials presented incomplete and deeply flawed cases for clemency. It is of course true that Snowden’s theft of the classified material and the subsequent publication of portions of it by the Times and the Guardian have produced considerable good, in the form of debate, lawsuits and executive action.

But unless good ends always justify criminal means – which they surely do not – there must also be consideration of the manner by which Snowden achieved his commendable ends.

To begin, Snowden was not a “traitor.”

He did not commit treason by turning classified material over to journalists.

Treason, as narrowly defined in the Constitution, does not cover such conduct.

But neither is he a hero.

Snowden claims to be a whistle-blower who engaged in an act of civil disobedience.

To qualify for such a designation, three criteria must be satisfied: First, the criminal act must be committed as a last resort after all other non-criminal means have been tried.

Second, the criminal act must be committed in such a way as to cause the least harm consistent with the ends sought.

And third, the civil disobedient must be willing to face the legal consequences of his unlawful actions.

Snowden failed all three of these tests.

He committed his crime as a first, rather than last, resort. He did not go to Congress, to the courts, or to the executive with his objections to the NSA program.

He claims to have complained to two superiors, but that weak claim, which has been hotly disputed, would not be sufficient to satisfy the first criteria.

As to the second, he caused far more harm than necessary to begin a public debate. He could have started by simply revealing the scope of the NSA intrusions, without also disclosing the content of classified material. This is especially true with regard to NSA surveillance of foreign leaders and other non-American persons outside of the country.

Such surveillance is entirely legal and unprotected by the Fourth Amendment.

Virtually all foreign spy agencies monitor us, and we are entitled to monitor them, without our employees taking the law into their own hands and disclosing our secrets.

Finally, Snowden ran away – with his stolen material. This made it possible for Russia, China, and other countries to obtain access to our secrets. It also provided Snowden with a golden bargaining chip with which to negotiate a plea bargain. These are not the actions of a civil disobedient willing to sacrifice himself for a greater good.

An outright pardon for Snowden would set a terrible precedent. It would send a message to all Americans with classified information that if they are dissatisfied with governmental policies, they should feel free to call the Times or the Guardian and disclose America’s secrets.

Snowden’s legal adviser has argued that Snowden committed no crime because his oath to the Constitution trumps his agreement not to disclose classified information. This argument, if ever accepted, would establish an even more dangerous precedent: it would allow anyone who believes that the government is acting unconstitutionally to break the law instead of challenging it in court.

Moreover, Snowden took it upon himself to disclose material that derived from perfectly constitutional intrusions on foreign individuals. His questionable constitutional defense would not even apply to those disclosures.

It is undoubtedly true that far too much information is today subject to classification, but the remedy for overclassification cannot be individual lawlessness, but rather a full review of the criteria under which material is kept secret. There are necessary secrets, as well as unnecessary ones. There should be debate about this important issue, but in a democracy, these decisions are made by elected and appointed government officials, not be aggrieved individuals.

The case for a plea bargain with Snowden is far more complex. Generally our government does not enter into negotiations with fugitives. Nor do we generally bargain with extortionists who threaten to disclose more classified information. But there are always exceptions to these rules, and a case can be made for bringing Snowden home, with his stolen material, in exchange for some leniency.

Moreover, the statutes governing the theft of classified material are draconian, and the sentence Snowden faces without a plea bargain may well be excessive, especially in light of his benign motives. This argues in favor of some leniency, in exchange for a guilty plea and full cooperation in the damage assessment that the government is now conducting.

In sum therefore, the case for a pardon is unconvincing. The case for a plea bargain is compelling but complicated by the fact that Snowden remains at large with his stolen material. History may well judge Snowden in a more positive light than that cast by our legal system.

That is often the fate of people who take the law into their own hands in an effort to achieve a good result.

The bottom line is that Edward Snowden is neither a traitor nor a hero, neither a devil nor an angel. He is a man who used criminal means to achieve a positive end. The law should recognize both the bad and the good in his actions and fashion an appropriate and calibrated legal response.

The author’s latest book is an autobiography, Taking the Stand. A shorter version of this article appeared in Newsmax.