NYT: Let's offer Snowden amnesty

So far, the call to halt prosecution of Edward Snowden for the theft and dissemination of highly-classified data from the NSA and Britain’s GCHQ have mainly come from anti-establishment voices.  Yesterday, the New York Times editorial board chimed in on their behalf, although not quite demanding amnesty. Perhaps a plea bargain for a reduced sentence would be enough, they suggested, in honor of the great service he performed for his nation:

All of this is entirely because of information provided to journalists by Edward Snowden, the former N.S.A. contractor who stole a trove of highly classified documents after he became disillusioned with the agency’s voraciousness. Mr. Snowden is now living in Russia, on the run from American charges of espionage and theft, and he faces the prospect of spending the rest of his life looking over his shoulder.

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

This is just whistling in the wind, really. The NYT’s editors start with clemency and then quickly retreat to a position that Snowden will never accept — prison time. He’s looking for asylum or amnesty, not a few years at Club Fed.

In order to justify a lighter sentence, the editors don’t take very seriously the notion that Snowden has damaged national security:

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

That’s only true if the review of damage is limited to just those programs exposed, and even that’s arguable. The problem with this argument is the broad spectrum of information that came out of the Snowden cache. Domestic data collection has only been part of that. Other data has damaged relations with allies, especially key intelligence-sharing partners like the UK, Germany, and Israel, at least in the short run.  The leaks have done serious damage to American diplomacy in South America with regimes whose track record on privacy and snooping hardly put them in a position for sanctimony. That kind of damage can keep us from discovering legitimate intelligence that could prevent attacks in the future.

Had Snowden used appropriate and available channels for whistleblowing rather than theft and exposure, much of that damage could have been avoided. The Times’ editorial shrugs that off by ignoring those channels:

More important, Mr. Snowden told The Washington Post earlier this month that he did report his misgivings to two superiors at the agency, showing them the volume of data collected by the N.S.A., and that they took no action. (The N.S.A. says there is no evidence of this.) That’s almost certainly because the agency and its leaders don’t consider these collection programs to be an abuse and would never have acted on Mr. Snowden’s concerns.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not.

The editorial presents a false binary choice — NSA officers or going on the lam. There are other channels, including presenting the evidence of wrongdoing to members of Congress. Snowden shrugged that off as well in his interview last month with the Washington Post’s Barton Gellman, claiming that Congressional intel chairs’  “softball questions” to NSA and other intel leaders showed they wouldn’t do anything with the evidence if he provided it. That’s a dodge, though, especially since Dianne Feinstein and Mike Rogers aren’t the only two members of Congress. Senators Ron Wyden and Rand Paul were well-known opponents of domestic surveillance; why not go to them, or anyone else first before taking the cache elsewhere, especially to China and then Russia? The fact that the Times’ editors never even address that channel shows how weak their argument is — which is why they don’t really try to make the amnesty argument in the end.

There is one argument for offering amnesty, which is to secure what’s left unexposed of the cache. If it can be established that the cache is secure and no one else has the data, it might be worth a trade in purely practical terms. It’s difficult to see how that could be established, though, especially with Snowden’s travels taking him through two of the less-friendly states to American security concerns. Otherwise, a deal would suggest to people still within secured-data environments that stealing a little data is dangerous, but stealing massive amounts of it might be their ticket to fame and fortune. It’s a bad precedent to set, and we’d be better off spending our time improving our legitimate whistleblowing channels and hardening security.