Sunday, September 18, 2016

Why Snowden won't be pardoned

Edward Snowden (NSA leakerblower) won’t be pardoned. I’m not arguing that he shouldn’t be pardoned, but that he won’t be pardoned. The chances are near zero, and the pro-pardon crowd doesn't seem to be doing anything to cange this. This post lists a bunch of reasons why. If your goal is to get him pardoned, these are the sorts of things you’ll have to overcome.

The tl;dr list is this:
  • Obama hates whistleblowers
  • Obama loves the NSA
  • A pardon would be betrayal
  • Snowden leaked because he was disgruntled, not because he was a man of conscience (***)
  • Snowden hasn’t yet been convicted
  • Snowden leaked too much
  • Snowden helped Russian intelligence
  • Nothing was found to be illegal or unconstitutional


Obama hates whistleblowers

Obama campaigned promising to be the most transparent president in history. Among his campaign promises are:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled as they have been during the Bush administration. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

That sounds like it was tailor made for Snowden, right? But Obama actual actions as president have been the opposite, at least where national security is concerned. Obama has prosecuted more whistleblowers under the espionage act than any other president – indeed, more than all previous presidents combined [**]. Moreover, Obama's prosecutions [**] have clearly politically motivated. Others, like Petraeus and Clinton, have not been prosecuted with the same fervor for mishandling classified information. Obviously, Obama's actions here have not been based on any principle.

If Obama was willing to prosecute those for minor leaks, he’s certainly motivated to prosecute Snowden for his huge leak. That politicians are never punished for their failures to follow through on campaign promises means that Obama doesn’t care. Obama hasn’t closed down Gitmo after 8 years, despite promising that’d be his first task in office.

In order for the pro-pardon campaign to succeed, they are going to have to repeatedly hold Obama’s feet to the fire. They need to keep pointing out Obama’s many transparency promises. They’ll have to point out how Obama’s campaign promises inspired Snowden, and that it was Obama’s failure to uphold his campaign promises that led Snowden to his actions. Blame Obama.

Obama loves the NSA

I think it was William Gates in his book who noted that Presidents, even the left-wing ones, quickly get subverted by the military. The military is apolitical, and takes the concept of “Commander in Chief” seriously. When the President says “jump”, they say “how high”. Presidents love that. In contrast, the President struggles with civilian departments under his nominal control, who passively resist his orders.

The NSA is a military organization (as opposed to the CIA, which is civilian). Therefore, the President loves the NSA. It's one of the few organizations that does what he wants.

Possibly more important is the fact that Obama will go down in history as the first President where “cyberwar” became a reality. All that spying infrastructure revealed by Snowden feeds into an enormous, and effective, cyberwar machine. The events in the Snowden movie, where drone strikes takes out somebody identified by their cellphone, are real.

Bush started it, but Obama presided over the development of this capability. In 50 years when the documents become declassified, future historians will point to this as one of the most enduring parts of Obama’s legacy, more even than Obamacare. Snowden damaged this legacy. Thus, Obama is going to be very much on the NSA’s side on this.

I have no clue how the pro-pardon people are going to answer this point, but they need to address it somehow.

A pardon would be betrayal

I’ve talked to a bunch of people in intelligence. Some understand that it’s just politics, and wouldn’t take a pardon personally. Others, though, would see it as a betrayal of the principles they stand for. That a junior disgruntled employee created such harm to their work, and then was pardoned, would betray them.

As I pointed out above, Obama loves the NSA. That he would offend them and demotivate them will be an important part of his decision making .

The NSA is a military unit, and thus above politics. Pardons are a political matter. The pro-pardon crowd needs to stress this – that those offended by a pardon are probably those too involved in politics anyway. They shouldn’t be that involved in politics.

Snowden was disgruntled

This is by far the most important issue. Snowden leaked because he was a disgruntled employee, angry at the lack of recognition and career growth that his skills/accomplishments deserved.

Indeed, the NSA/government doesn’t really believe in the concept of “whistleblowers” driven by matters of conscience. They believe that whistleblowing always comes from angry employees who want to strike back at organizations in revenge.

Thomas Drake, for example, was the proponent of two competing projects. His side lost, so in anger, he leaked about the side who won the internal political battle.

Bradley/Chelsea Manning hated the military because she didn’t fit in. Her justification for leaking is a bit incoherent. She leaked because she was angry and wanted to strike back at the system.

The Watergate leaker “Deep Throat”, Mark Felt, was angry that he was passed over for promotion to succeed J Edgar Hoover. He wasn’t clean himself, being party to Hoover’s decades of dirty tricks, illegal wire taps, and violations of constitutional rights. His disclosure of the Watergate break-in was not based on "conscience".

After Snowden, the NSA created a profile to identify similar people who might leak. This profile doesn’t include those who have EFF stickers on their laptops. Instead, it identifies people who might be disgruntled in the same way Snowden was.

Snowden’s profile is common in the computer/cyber field. The field is full of people without high-school diplomas, without college degrees, or if they have a college degree, in a non-computer major. These people are smart and self-taught. They follow their interests, so they have are extremely skilled at some narrow area that strikes their fancy -- although not necessarily in the areas of their job responsibilities.

It’s a common in IT/software-development that your otherwise unremarkable coworker is actually a rock-star in the community, doing minor system management during the day, but contributing Linux kernel patches at night. Or doing something else notable.

Those treated as junior employees at work, but who see themselves as rock-stars, are going to have an enormous chip on their shoulder, and will become extremely disgruntled at work. (Well, some rockstars understand they can’t get recognized at work for their skills, so mature rockstars aren’t a problem – just immature ones).

At some point I’m going to write up a larger post on this “Snowden profile”, the short point here that I’m trying to make is that the NSA overwhelming sees this as a problem of “disgruntlement” and not “conscience”. Thus, he won’t get pardoned for acting on his conscience, because that would be tantamount to pardoning the disgruntled.

For those of you arguing against this, it’d be useful to point out that Snowden’s own justifications are more coherent than the average leakers. He brings American founding principles and documents into the discussion. He’s obviously spent a lot more time thinking about the underlying principles than most leakers. Whether or not his disgruntlement played a part, conscience was clearly more a part of his reasons for leaking than the NSA would like to think.

Snowden hasn’t yet been convicted

This is a minor nit, but most pardons are for people who have already been convicted. In other words, justice has taken its course, and the president afterwards, through commutations or pardons, can adjust the result.

Even if Obama were willing to entertain the issue, what he’d be looking for as an ideal would be for Snowden to go through the court system, serve a couple years, then get his sentence merely commuted (leaving the technicality of a felony conviction intact). Whether or not you want to encourage people whistleblowers of the future by reducing Snowden’s sentence, you still want enough of a punishment to discourage future disgruntled employees from doing harm.

That Obama hasn’t negotiated with Snowden to come back and accept a plea deal is strong evidence that Obama has no intention of pardoning Snowden. Or, we might see a semi-pardon, something along the lines that would pardon him for any espionage charge that contains a death penalty, but which would leave Snowden open to lesser charges.

I suggest this because the pro-pardon crowd might think about a partial-pardon. They’d need lawyers experienced in the subject to analyze the possible crimes and come up with text for this. Such a pardon could allow Snowden to come home and be tried for lesser crimes that would only result in a few years jail time.

Snowden leaked too much

PRISM, phone metadata, smiley-face (data center unencrypted links), and that bulk-collection document (counting messages captured in the United States) all showed unacceptable domestic spying by the United States.

Yet, most of the Snowden revelations do not. They show expected spying on foreign countries. As I write this today The Intercept has a lengthy article [**] based on Snowden leaks, but far from any expressing outrage or abuse, the article documents how effective it has been getting terrorists. This leak helps terrorists and harms our national interests.

Of all the documents I’ve seen, maybe five show something worth whistleblowing, the other 100 don’t. Maybe you can get the President to pardon Snowden for those 5 documents, but getting a pardon for the other 100 is going to be much more difficult.

Personally, I’m of the opinion “fuck them”. They (those in the intelligence community) were caught doing too much, surveilling innocent American citizens, so I really don’t care if Snowden goes too far exposing them. They deserve to be “punished” for their excesses.

For you pro-pardon folks, point out that they can’t criticize Snowden for going “too far” without tacitly admitting there’s a point where he went “far enough”. In other words, they can’t argue some of the disclosures were bad without agreeing that some disclosures were good.

Snowden helped Russian intelligence

Everyone I talk to in the intelligence community is absolutely convinced Snowden has helped the FSB (Russian intelligence). They claim there’s proof.

I remain unconvinced. Snowden gets unreasonable worship from one side, and unreasonable hate from the other. This makes me skeptical of both sides. Unless I see this “evidence” they are talking about, to evaluate it for myself precisely what it means, I’m not going to believe it.

But the fact remains that those talking to Obama are going to tell him that they believe Snowden helped the Russians. This is going to make a pardon essentially impossible. The pro-pardon folks are going to have to figure out an answer to this problem. If there’s concrete evidence, like a film of Snowden explicitly telling an FSB agent some important secret, then you are toast and no pardon will ever happen. So you have to assume any evidence would be inconclusive, like a picture of Snowden meeting with a top FSB agent, or an audio recording of Snowden talking casually with the FSB – but not revealing important secrets at that time. Talk about pardon's assuming this sort of evidence.

The leaks resulted in no meaningful reform

Yes, the leak resulted in the USA FREEDOM ACT, but that was just a white-wash. Instead of the NSA collecting all the phone metadata, a private consortium of phone companies does the collect. Indeed, the situation is now worse. Previously, the NSA restricted searches of that data for national security (terrorism) reasons. Now every law enforcement agency, from the FBI, to the DEA, to the ATF, to the IRS, is querying that database. The number of phone records been searched by the government has exploded, for reasons unrelated to national security.

You'd think that around the world, countries would've gotten angry at the NSA, and kicked them out. The opposite has happened. After Snowden advertised our awesome capabilities, countries have lined up to establish partnerships with us, to get access to the NSA. And, many (especially despotic countries) have sought to build their own mass surveillance programs, based on the Snowden model.

The pro-Snowden crowd claims that "none of the reforms would have occurred without Snowden". Since none of the reforms were meaningful, or went in the wrong direction, Obama isn't going to respect this as a meaningful argument. Activists will have argue that Snowden deserves a pardon, despite the lack of significant interest by the public, and despite the lack of reforms.

Nothing was found to be illegal or unconstitutional

The Supreme Court didn’t rule on Snowden, finding anything he revealed either unconstitutional or illegal. QED: Snowden is not a whistleblower. That’s how everyone in government sees him. (Yes, a district court ruled Patriot Act 215 didn't cover it -- but the ruling ultimately had no effect).

The pro-Snowden position is going to have to point out that while not technically illegal, there was malfeasance. The intelligence community was doing things that the American people deserves to know about. Moreover, in response to his revelations, Congress acted and changed the law. You keep saying "whistleblower" as if it's a term the other side accepts. They don't (that's why I used "leakblower" at the top of this document :). The obtuse continual use of this word in the face of such opposition just makes them not listen to you.

Conclusion

At the end of his presidency, Bill Clinton pardoned his brother for cocaine charges and his friend for tax charges. That means anything is possible, and maybe Obama will pardon Snowden.

But as I see it, the chances of this are essentially nil. I think you pro-Snowden people are way to optimistic. You spend all your time talking to other pro-Snowden people, and not enough time talking to the anti-Snowden crowd. You cherry pick the stupidest bits of the anti-Snowden crowd (like that congressional report) to convince yourself of your superior position. You don't talk to the reasonable people who oppose Snowden. You don't believe reasonable opposing viewpoints exist.

You have no clue why Obama won’t pardon Snowden, and thus, are doing nothing to change his mind. You think, instead, that getting celebrities like Susan Sarandon on your side is going to promote your cause. Obama isn’t seeking re-election. He therefore doesn’t care what they think. Your attempt on stirring up public support will have no effect.

This is the decision of one man, Obama. It’s a free decision, one that will have no consequences for him either way. It’s one of the few decisions in his career where he will decide what’s right, not what’s popular. You have to address what his concerns are. In this document, I’m only guessing as an outsider what some of those concerns might be. But it behooves you, the pro-pardon activist, to figure what Obama’s real concerns are, and address them. Otherwise you don’t have a prayer of changing his mind.




8 comments:

Gary Hinson said...

What makes you think Mr Snowden wants a pardon?

Unknown said...

Obama hates whistleblowers
Obama hates much more bad press.
Obama loves the NSA
Obama loves good press more
A pardon would be betrayal
Less than NSA has betrayed its mission, and the American people in general.
Snowden leaked because he was disgruntled, not because he was a man of conscience (***)
No one cares. And also, the why doesn't matter, the facts do.
Snowden hasn’t yet been convicted
Doesn't matter. He is threatened. US threats must stop.
Snowden leaked too much
It's "too much", but Hillary leaked basically all highest classification, and that's ok ? Funny how that works ...
Snowden helped Russian intelligence
It's always the Russians !
Nothing was found to be illegal or unconstitutional
So truth is what the authority say it is. Facts don't matter, Snowden must be punished because THEY want him punished. That's not Justice.

That's the sad thing about "conservatives", they conserve nothing. Because there is one thing they put before conservatism, it's authority. And authority without proper challenge will only grow, at the expense of the people.

@_decius_ said...

Rob,

Your last point about the legal issues is completely incorrect. The program was found to be unlawful by the highest court that reviewed it, the Second Circuit Appeals Court. I've included a link below. The Supreme Court hasn't ruled on this because none of the cases have reached it. AFAIK, the government did not appeal their loss at trial. Congress passed the US Freedom Act to restructure the program and moot the legal challenges, but some are still ongoing.

http://mobile.nytimes.com/2015/05/08/us/nsa-phone-records-collection-ruled-illegal-by-appeals-court.html

MikeInSeoul said...

Gary Hinson - in an interview with The Guardian published on Sep 14, Mr. Snowden himself started making the case for an Obama pardon. You can read the article, and an accompanying video of part of the interview, here:

https://www.theguardian.com/us-news/2016/sep/13/edward-snowden-why-barack-obama-should-grant-me-a-pardon


Robert - interesting article, even if I don't agree with many points. However, there are multiple issues with editing and typos. Might want to give it another read for some cleanup.

Patrick said...

There are things that a person seeking the presidency thinks before taking office. A lot of those views get challenged as soon as that person learns a whole bunch of top secret information. There are also those within the various TLA orgs who try to change those view points. That's the nature of the beast.

I'm not sure how I feel about Snowden. I appreciate that he leaked the domestic surveillance stuff. I don't appreciate that he leaked the foreign stuff which is legal. All that is moot if he actually has FSB links (which I doubt, but you'd want to be sure before making a decision).

It's not really black or white. I don't see what Obama has to gain from pardoning him though. He's going out with a 58% approval rating.

Will Morgan said...

THE QUESTION HERE IS SIMPLE: CAN A GOVERNMENT WHICH VIOLATES FREE PRESS AND FREE SPEECH ARTICLES OF THE CONSTITUTION LEGITIMATELY OFFER A "PARDON"? I WOULD SAY THAT SUCH A GOVERNMENT LACKS THE LEGITIMACY TO PARDON, SINCE IT HAS BROKEN IS BREAKING THE LAW WHEN IT SPIES ON ITS CITIZENRY.EVEN NOW WE DO NOT KNOW FAR OUR GOVERNMENT HAS GONE AND IS GOING. I CANNOT FIND A 'STATE SECRETS' LAW IN THE CONSTITUTION, AND SINCE THIS MATTER IS A CONSTITUTIONAL ONE, IT CANNOT BE RESOLVED BY POLICEMEN OR PRESIDENTS WHATEVER THEIR PERSUASION.

Greg Nation said...

Conviction is not necessary for a pardon. "[The pardon power] extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." Ex Parte Garland 71 U.S. 333, 380 (1866).

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