Democrats and Republicans in Congress don’t agree on much, but the members of the House Intelligence committee unanimously agree on one point — Edward Snowden should not get a presidential pardon. Fueled in part by a new Oliver Stone film about the one-time NSA contractor, demands to clear his record have begun picking up steam. A bipartisan letter to President Obama pushes back against this pop-culture push, calling him a “criminal” that stole material that went far beyond the whistleblowing his supporters claim:
The intelligence panel rejected arguments that Snowden acted out of conscience and insisted that he should be held accountable for his actions. In their letter, the lawmakers reminded Obama that he had said in a news conference in 2013, “I don’t think Mr. Snowden was a patriot.”
“In short,” they wrote, “we agree with you. Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal.”
The lawmakers faulted Snowden for leaking material rather than reporting his concerns about surveillance overreach to oversight officials, such as the committee or inspector general. They said he began his massive download two weeks after a spat with a supervisor.
The vast majority of the documents he leaked had nothing to do with programs that affected privacy and civil liberties, they said, but pertained to military and intelligence programs “of great interest to America’s enemies.’’
The report cites Russian parliamentary figures who claim that Snowden did share his cache of stolen material with the Russian government. Its dissemination helped out more than just the FSB, they also insist, emphases in the original:
First, Snowden caused tremendous damage to national security, and the vast majority of the documents he stole have nothing to do with programs impacting individual privacy interests-they instead pertain to military, defense, and intelligence programs of great interest to America’s adversaries. A review of the materials Snowden compromised makes clear that he handed over secrets that protect American troops overseas and secrets that provide vital defenses against terrorists and nation-states. Some of Snowden’s disclosures exacerbated and accelerated existing trends that diminished the IC’s capabilities to collect against legitimate foreign intelligence targets, while others resulted in the loss of intelligence streams that had saved American lives. Snowden insists he has not shared the full cache of 1.5 million classified documents with anyone; however, in June 2016, the deputy chairman of the Russian parliament’s defense and security committee publicly conceded that “Snowden did share intelligence” with his government. Additionally, although Snowden’s professed objective may have been to inform the general public, the information he released is also available to Russian, Chinese, Iranian, and North Korean government intelligence services; any terrorist with Internet access; and many others who wish to do harm to the United States.
The ACLU blasted the committee report, calling Snowden a whistleblower and saying that the government had never proved harm from Snowden’s theft. On the latter point, it’s not necessary to demonstrate harm, especially not in a public forum; classification is enough to prosecute, and even more so at the levels at which this information had been classified. As for being a whistleblower, the committee has an answer for that, too:
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 fiund 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.
Despite Snowden’s later public claim that he would have faced retribution for voicing concerns about intelligence activities, the Committee found that laws and regulations in effect at the time of Snowden’s actions afforded him protection. The Committee routinely receives disclosures from IC contractors pursuant to the Intelligence Community Whistleblower Protection Act of 1998 (IC WPA). If Snowden had been worried about possible retaliation for voicing concerns about NSA activities, he could have made a disclosure to the Committee. He did not.
And this point seems especially pertinent:
Nor did Snowden remain in the United States to flee the legal consequences of his actions, contrary to the tradition of civil disobedience he professes to embrace. Instead, he fled to China and Russia, two countries whose governments place scant value on their citizens’ privacy or civil liberties-and whose intelligence services aggressively collect information on both the United States and their own citizens.
Until 2001, the precedent for presidential clemency was that the person had to have either gone to court or was preparing to do so. Those who fled US jurisdiction did not usually get consideration for pardons or commutations, with the exception of Jimmy Carter’s pardon of draft dodgers who had fled to Canada rather than serve in Vietnam. Bill Clinton broke that precedent by pardoning Marc Rich, whose ex-wife was a major Democratic Party donor and whose business partner Gilbert Chagoury still has connections to the Clintons.
Obama would have to break that precedent in order to pardon Snowden, and that seems unlikely at best. Snowden’s exposure of sensitive operations repeatedly embarrassed the Obama administration, so he’s probably not inclined to bend over backwards to excuse Snowden even apart from the legitimate issues brought up in the House Intelligence Committee report. Eric Holder suggested making a plea deal to get Snowden to return, but even he dismissed the idea that Snowden should get a free ride for exposing NSA operations to the Russians, Chinese, Iranians, etc etc etc. That’s likely to be the best that Snowden can expect from Obama, and perhaps not even that much from either Donald Trump or Hillary Clinton after all the leaks that have hammered her campaign.
In the meantime, Snowden gets the Oliver Stone treatment in the eponymous film opening today. It’s getting a mixed reaction on Rotten Tomatoes, while Sonny Bunch calls it “that rarest of creatures: a boring Oliver Stone movie”:
Snowden’s biggest sin isn’t that its message is obvious or biased or lacking in subtlety. I’ve always had a soft spot for Stone, in part because his stridency serves him so well. Platoon is a simple morality play, but one filled with tension and drama. Wall Street is an occasionally hokey melodrama (“Who am I?”) that nevertheless hit a real nerve by vocalizing what much of the rest of the country was feeling. JFK and Nixon are like dark alternate histories of America, the latter of which did more to humanize its subject than just about any other work.
Snowden’s real problem is that it is boring. It is the cinematic equivalent of clapter, a portmanteau describing the anti-edgy humor championed by Jon Stewart that encourages applause rather than belly laughs. Indeed, it’s so like clapter that the film literally closes with a standing ovation for the real-life Edward Snowden by a crowd of techies enamored of his derring-do.
I don’t have a soft spot for Stone’s films, as they’re usually over-the-top with directorial self-indulgence and political lecturing. (One exception: World Trade Center, which was a terrific film that focused on the story rather than Stone’s “Look At Me, I’m Directing” tics.) I’ll wait for this to hit the cable movie channels.