When the President Pardoned a Leaker

In recent discussions of whether President Obama should pardon Edward Snowden, it has gone unnoticed that a presidential pardon was once granted to a person who committed an unauthorized disclosure of classified information to the press, effectively erasing his crime.

In 1985, Samuel L. Morison, a U.S. Navy intelligence analyst, was convicted under the Espionage Act statutes of providing classified intelligence satellite photographs of a Soviet aircraft carrier to Jane’s Defence Weekly. He was sentenced to two years in prison, of which he served eight months.

But in January 2001, President Clinton issued “a full and unconditional pardon” to Morison.

The fact that a leaker received a pardon is an indication that the unauthorized disclosure of classified information is not so intrinsically heinous a crime as to be categorically beyond official forgiveness. Since one president pardoned a leaker, it is certainly within the realm of possibility that another president might choose to do the same.

In several respects, however, the Morison case differs significantly from the circumstances of the Snowden case.

For one thing, Morison submitted to judicial process (after his arrest, anyway), was convicted, and served his sentence. Snowden, on the other hand, is a fugitive and has neither been tried nor convicted of a crime.

Morison did actively seek a pardon, but he did so through formal petition procedures rather than through a grass roots campaign or an appeal to newspaper editorial boards, opinion leaders or celebrities.

Morison had an influential champion in Senator Daniel P. Moynihan, who wrote privately to the President on his behalf in September 1998, more than two years before the pardon was ultimately granted.

Interestingly, Moynihan did not suggest that Morison was an exemplary character or someone who was personally deserving of presidential intervention. (Morison went on to plead guilty to an unrelated crime years later.) Instead, he argued that the use of the Espionage Act as a means to regulate the press was improper and unfair.

“Press censorship has been proposed since [the enactment of the Espionage Act in 1917], but never adopted. Ironically, we now have in Samuel Loring Morison a man who has been convicted for leaking information, while so many real spies are discovered but never prosecuted,” Moynihan wrote.

“I would hope that in your review of Mr. Morison’s application for a pardon you reflect not simply on the relevant law, but the erratic application of that law and the anomaly of this singular conviction in eighty-one years,” he wrote.

Moynihan’s addressed his argument directly to the President, who has exclusive authority to issue a pardon, rather than as part of a public campaign. His letter was released under the Freedom of Information Act after the pardon was granted.

And because Morison’s advocacy of a pardon was conducted quietly, it did not elicit public opposition from intelligence agency officials or their supporters, though President Clinton did encounter significant internal resistance.

“We said we were obviously opposed — it was a vigorous ‘Hell, no’,” one senior intelligence official told the Washington Post. “We think giving classified information to people who are unauthorized to receive it is a bad thing to do and giving pardons to people who are convicted of doing that sends the wrong signal to people who are currently entrusted with classified information.” (“Clinton Ignored CIA in Pardoning Intelligence Analyst” by Vernon Loeb, February 17, 2001)

Remarkably, President Clinton disregarded such complaints from within his Administration and pardoned Samuel Morison, even though there was little or nothing to be gained politically by doing so.

In short, the Morison case represents a template for winning a presidential pardon that other convicted leakers might profitably study and attempt to replicate. But advocates of a pardon for Edward Snowden, and Snowden himself, have necessarily chosen a different path.