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.
Public discussion of the Edward Snowden case has mostly been a dialog of the deaf, with defenders and critics largely talking past each other at increasing volume. But the disagreements became sharper and more interesting over the past week.
“Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal,” wrote the members of the House Intelligence Committee in a startling September 15 letter to the President, urging him not to pardon Snowden, contrary to the urging of human rights groups.
“The public narrative popularized by Snowden and his allies is rife with falsehoods, exaggerations, and crucial omissions,” the House Intelligence Committee wrote in the executive summary of an otherwise classified report on Snowden’s disclosures.
Remarkably, however, the House Committee report itself included numerous false statements and misrepresentations, according to an analysis by Barton Gellman, who had reported on Snowden’s disclosures for the Washington Post.
“The report is not only one-sided, not only incurious, not only contemptuous of fact. It is trifling,” wrote Gellman, who identified several apparent errors and falsehoods in the House Committee summary.
What is perhaps worse than what’s contained in the House document, though, is what is missing from it: Congressional intelligence overseers missed the opportunity to perform any reflection or self-criticism concerning their own role in the Snowden matter.
The fact that U.S. intelligence surveillance policies had to be modified in response to the public controversy over Snowden’s disclosures was a tacit admission that intelligence oversight behind closed doors had failed to fulfill its role up to that point. But since the Committee has been unwilling to admit any such failure, it remains unable to take the initiative to rectify its procedures.
Last week, a coalition of non-governmental organizations proposed various changes to House rules that they said would help to improve the quality of intelligence oversight and make it more responsive to congressional needs and to the public interest.
Meanwhile, several human rights organizations launched a campaign to urge President Obama to pardon Snowden.
“Thanks to his act of conscience, America’s surveillance programs have been subjected to democratic scrutiny, the NSA’s surveillance powers were reined in for the first time in decades, and technology companies around the world are newly invigorated to protect their customers and strengthen our communications infrastructure,” the petition website said. “Snowden should be hailed as a hero. Instead, he is exiled in Moscow, and faces decades in prison under World War One-era charges that treat him like a spy.”
However, aside from that oblique reference to the Espionage Act of 1917, the petition campaign does not acknowledge any defect in Snowden’s conduct or weigh counterarguments. (A somewhat more nuanced defense of a pardon was presented by Tim Edgar in Lawfare. A substantial rebuttal to the pardon proposal was offered by Jack Goldsmith also in Lawfare.)
But of course what complicates the Snowden matter is that his disclosures exceeded the boundaries of “democratic scrutiny” and went well beyond any identifiable “act of conscience.”
“The fact is, many of Snowden’s documents bore no resemblance to whistleblowing as the phrase is broadly understood,” wrote Fred Kaplan in a review of the new Oliver Stone movie about Snowden in Slate. Rather, he said, they represented “an attempt to blow U.S. intelligence operations.”
Advocacy journalist Glenn Greenwald replied with a debater’s point that Snowden is innocent of any such offense since he (Snowden) did not directly disclose anything at all to the public! Instead, he gave documents to newspapers that reported on his material, and those papers are responsible for any inappropriate disclosures.
“Snowden himself never publicly disclosed a single document, so any programs that were revealed were the ultimate doing of news organizations,” according to Greenwald.
In an oddly mercenary argument, he also wrote that it was hypocritical of the Washington Post editorial board to oppose a pardon for Snowden, considering that the Post had gained “untold millions of clicks” from his disclosures, and therefore somehow owed him a debt of loyalty.
But an effort to shift responsibility away from Snowden on to news reporters and editors proves too much. It implies that Snowden is not a whistleblower at all, since he himself didn’t blow any whistles, his journalistic collaborators did.
It seems more sensible to conclude that Snowden is responsible for his own actions as well as for the directly foreseeable consequences of those actions.
In an interesting response to Jack Goldsmith, Marcy Wheeler wrote that it is possible to comprehend — if not to reconcile — the sharply opposing views of the Snowden case if they are understood as a clash between professed American values (such as openness, privacy, and internet freedom) and American interests and actions (such as global surveillance and projection of military power). The former, “cosmopolitan” view presumes, however, that the favored values transcend, and can be sustained apart from, their national and institutional roots.
Unauthorized disclosures of classified information by Edward Snowden have damaged U.S. intelligence capabilities, National Counterterrorism Center director Nicholas J. Rasmussen told Congress last week.
“Due to the Snowden leaks and other disclosures, terrorists also have a great understanding of how we seek to conduct surveillance including our methods, our tactics and the scope and scale of our efforts. They’ve altered the ways in which they communicate and this has led to a decrease in collection,” Mr. Rasmussen said at a February 12 hearing of the Senate Select Committee on Intelligence.
“We have specific examples which I believe we have shared with the committee and the committee staff in classified session — specific examples of terrorists who have adopted greater security measures such as using various new types of encryption, terrorists who have dropped or changed email addresses, and terrorists who have simply stopped communicating in ways they had before, in part because they understand how we collected,” he said.
This is not terribly persuasive, particularly since Mr. Rasmussen did not specify which leaks resulted in which changes by which terrorists at what cost to U.S. security. Nor is a public statement by an intelligence official before the Senate Intelligence Committee entitled any longer to a presumption of accuracy since the Committee permits errors to stand uncorrected.
Nevertheless, it seems plausible that leaks which had the power to galvanize public debate over the scope of intelligence surveillance might also have had the power to undermine existing collection capabilities, including collection for valid and necessary purposes.
For some of Edward Snowden’s partisans and supporters, however, the possibility that his leaks had negative as well as positive consequences involves more complexity than they can tolerate. If Snowden intended to defend constitutional values, as he insists, then how dare anyone suggest that he may have also aided America’s enemies, even indirectly?
This sort of complexity does not arise in Laura Poitras’s award-winning film Citizenfour about Snowden, as its few critical reviewers have noted.
Many of the documents Snowden disclosed “go far beyond exposures of spying on Americans,” wrote Fred Kaplan in a review of the film in Slate. “If Snowden and company wanted to take down an intelligence agency, they should say so. But that has nothing to do with whistleblowing or constitutional rights.”
Likewise, wrote George Packer in The New Yorker, “Among the leaked documents are details of foreign-intelligence gathering that do not fall under the heading of unlawful threats to American democracy–what Snowden described as his only concern. [Former NSA official William] Binney, generally a fervent Snowden supporter, told USA Today that Snowden’s references to ‘hacking into China’ went too far: ‘So he is transitioning from whistle-blower to a traitor’.”
And from Michael Cohen in The Daily Beast: “What is left out of Poitras’s highly sympathetic portrayal of Snowden is so much of what we still don’t know about him. For example, why did he steal so many documents that have nothing to do with domestic surveillance but rather overseas–and legal–intelligence-gathering operations?”
But for a discussion of Citizenfour that presents no such dissonant, skeptical notes or troublesome opposing views, see the late David Carr’s final interview with Snowden, Poitras and Glenn Greenwald.
“How’d you like the movie?” Mr. Carr asked Snowden. “It’s incredible,” Mr. Snowden affirmed. “I don’t think there’s any film like it.”