Edward Snowden, the man who leaked National Security Agency secrets three years ago, fled to Russia but never completely disappeared.
Now, a new movie about him and a fresh push from civil liberties groups have reinvigorated the debate about whether President Barack Obama should pardon Snowden and let him return home. It doesn’t have to be an either-or proposition.
Snowden leaked information that revealed troubling details about the NSA’s spying on Americans and America’s allies. The agency collected virtually every American’s cellphone records, sweeping them up into massive databases. The NSA also developed techniques to intercept internet traffic and text messages.
Privacy advocates rightly decried the massive invasion of innocent people’s personal lives, and allies condemned the monitoring of their leaders’ cellphones and emails.
An important and necessary national discussion followed. For the first time since the Patriot Act passed after the 9/11, terrorist attacks, Americans seriously considered the delicate balance between liberty and security.
Congress passed new rules for bulk gathering of data. The bill wasn’t perfect, but at least it inserted some stronger judicial oversight.
It wasn’t all noble. Snowden’s critics note that his recklessness undermined security.
Terrorists and other bad people learned how the government tracked them. They were able to alter their communications to avoid detection.
Given that there has been no large-scale, coordinated terrorist attack on American soil since Snowden’s action, security hawks might overstate the real harm of the revelations.
Even if they are right, technology changes quickly. The NSA and others have developed new tools in the past few years.
The clearer harm was economic. Consumers and foreign governments suddenly learned American technology might not be trustworthy.
They began to look elsewhere for software and hardware less likely to contain embedded NSA spyware. In some cases, U.S. companies moved data servers overseas in order to reassure international customers.
Snowden was neither a privacy champion nor a despicable traitor. On balance, he probably comes out slightly ahead for having revealed government abuses, but it was not without cost.
What should come next and whether it involves a pardon, must weigh the complexity and nuance of his story. This is no time for ham-fisted reactions.
History might provide some help.
There’s at least one precedent of a president pardoning a leaker. In 1985, Samuel Morison sold classified intelligence photos of a Soviet Aircraft carrier to the magazine Jane’s Defence Weekly. He was prosecuted, convicted, sentenced to two years and served eight months.
Morison’s leak differs in scale and nature, but crucially he was punished before he was pardoned. Snowden’s advocates today seek exoneration without legal consequences.
Even if one generously termed Snowden’s actions as a form a civil disobedience, that peaceful form of political protest typically comes with penalties. The Rev. Martin Luther King Jr. spent time in jail, even as he and many others in the civil rights movement proved that his cause was just. King knew he was breaking the law, and he accepted the consequences.
Perhaps, then, a compromise is possible. Obama could promise Snowden a pardon in return for a guilty plea and a few months in jail.
Given the rapidly approaching election, it would have to be a limited time offer. There’s no guarantee that Democratic presidential nominee Hillary Clinton would agree to pardon a leaker as her husband did 15 years ago, and even less likelihood that Republican presidential nominee Donald Trump would honor the deal.
If that all came together, Snowden would receive some punishment, serving the demands of justice, and Obama would send a strong message, acknowledging that whistleblowers who reveal government abuses deserve special consideration.
Whatever Obama chooses, Snowden’s fate will be an important element of the president’s legacy.