Editorials from two of the most well established newspapers in the world – the Guardian and the New York Times - have now called for clemency for Edward Snowden and recognized him as a legitimate whistleblower. The case for the current indictment by the US Department of Justice that labels Snowden a spy and a thief has lost all moral credibility. The DOJ is now seen in America and around the world as out of step with our common values.
Correspondingly, it should be said, that while many people believe the NSA has gone too far and are uncomfortable with the ever expanding Surveillance State – including the author of the Patriot Act - they also fear that granting clemency to Edward Snowden would set a dangerous precedent and encourage future American intelligence operatives that found fault with the level of legal protections of other programs to disobey their orders to keep state secrets secret. They fear granting clemency would promote permissiveness and would subsequently (and genuinely) damage US national security.
Yet there is a solution to both problems.
During his end of the year press conference President Obama made a rather obviously inaccurate claim about the NSA. He wrongly said that the NSA has a functional internal system for whistleblowers and that Snowden could have utilized it. The Times editorial addressed this false claim head on in their piece.
Obama said at a news conference. “So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”
In fact, that executive order did not apply to contractors, only to intelligence employees, rendering its protections useless to Mr. Snowden. 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.
Beyond the fact that as a contractor Snowden was not subject to the executive order is the example of Thomas Drake. A man who worked within the NSA’s whistleblower system and was prosecuted for his compliance with the rules. The Drake case is smoking gun evidence that there is no functioning nor substantive whistleblowing system within the NSA.
So what is the solution? Give Snowden clemency and fix the NSA’s broken whistleblowing system.
This solution allows Snowden to return to the United States without facing punishment for his whistleblowing, but also ensures that future intelligence operatives cannot claim to be whistleblowers when they leak highly sensitive intelligence materials to the press on the grounds that it violates the law and they had no legitimate internal outlet to reform a practice. Creating a system for valid opportunities to blow the whistle within the NSA would neutralize the now widely accepted Snowden defense for leaking – that the NSA has weak to non-existent internal controls on its lust for information.
If President Obama and the national security state embrace this solution they will win back some of the public’s trust and force future Edward Snowden’s to work within the system or face near universal condemnation from the American public. Failure to adopt reform along with continuing the persecution of Snowden means that the United States government will not only continue to lose trust among the American people but will leave morally conscious intelligence operatives no choice in the future but to leak to the press.
It’s time for Obama and the NSA to swallow their pride, fix the whistleblowing system, and bring Ed home.