This is why immunity for Edward Snowden is so essential. In principle, there should be a public-accountability defense in criminal law, similar to self-defense and defense of others. I have written about why we should create such a defense and how to design it. But Congress should also introduce a simple direct intervention: adding retroactive immunity for Snowden to the NSA reform bill currently under consideration on Capitol Hill. Retroactive immunity would simply mirror immunity granted in the 2008 FISA Amendments Act to telecommunications companies that violated the law by collaborating with the illegal surveillance, and which the White House has sought to extend to other firms that handed over private data in the new reform bill.
Retroactive immunity would build constitutional culture rather than a permanent legal solution. Our (fuzzy) memories of the 1970s teach us, collectively, that unauthorized national-security leakers who expose substantial wrongdoing were heroes, and that respect, not a prison term, was their due. That is the lesson that immunity for Snowden would reinforce. It will not make leaking a low-risk activity, nor will it erase the dread of repercussions like Manning’s 35-year prison sentence. But immunity will be a strong statement to insiders that if the system has gone badly enough off track, and if public disclosure can lead to genuine benefits, then a conscientious individual can do the right thing. Even if the leak is illegal, the public will support bona fide whistleblowers who expose significant abuses, and the whistleblowers will not be forced to spend their lives in prison or exile while those whose misdeeds they exposed profit on the speaking circuit.
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