Atlantic contributor Conor Friedersdorf supported The New York Times’ call for clemency Wednesday for NSA leaker and whistle-blower Edward Snowden by meticulously explaining why clemency would not set a dangerous precedent that would encourage federal employees to become loose with all manner of official secrets, as many of the Times’ critics have claimed.

“Where [the idea that clemency is dangerous] goes wrong is imagining that a plea bargain or some form of clemency (or even a presidential pardon) for Snowden would set a precedent or legitimize a general rule of any kind,” Friedersdorf explains Thursday. “It would not. The concepts of pardon and clemency are part our system precisely because there are instances when applying rules we’ve generally decided upon would be unjust and counterproductive. They are meant to be used judiciously, on an ad hoc basis, in what are clearly exceptional circumstances.

“Snowden’s leak meets those tests. Urging clemency for Snowden is not a radical case against our existing system of rules — it is an acknowledgment that, like all rules, ours are imperfect. One of the finest presidents, George Washington, pardoned farmers who took up arms against the federal government (!) to protest a tax on whiskey. He wouldn’t have granted those pardons had he thought that he was making a radical case against the legitimacy of the U.S. government or setting a precedent for anti-tax insurrections. And it is difficult to argue that any such precedent was set, even at the dawn of the federal republic when norms were still being established. 

“Today, it is even more difficult to imagine that a pardon for Snowden, or one of the lesser forms of forgiveness the Times advocates, would cause other federal employees to imagine that they’d avoid punishment if, say, they made public the identities of American spies abroad or secret codes from the U.S. nuclear program. As a political matter, the fallout would be dramatically different. And it isn’t as if plea bargains, grants of clemency, or pardons given to one man impose any sort of binding precedent in the fashion of a Supreme Court ruling. In the unlikely event that forgiveness for Snowden caused anyone to start leaking other secrets, correcting the problematic ‘precedent’ would be one swift prosecution away.”

Friedersdorf draws up a list of standards that could be used to determine when clemency is appropriate. They include instances when the leak reveals lawbreaking by the government, when it spotlights behavior deemed unconstitutional by numerous federal judges, and when the leak causes multiple members of Congress to express alarm about the policies revealed.

Furthermore, Friedersdorf joins many writers, including Glenn Greenwald, who have pointed out that people in power release classified information as it suits their interests with impunity all the time, most notably those in the White House.

“Leaks of classified information in the United States will remain common, regardless of what happens to Snowden, because they frequently serve the interests of people in power — and they won’t be prosecuted precisely because they are powerful or connected,” Friedersdorf continues. “That longstanding, bipartisan dynamic is far more important to the norms surrounding official secrets in the U.S. than how a singular, unrepeatable, once-in-a-generation leak is handled. And even if Obama buckled to New York Times pressure and pardoned Snowden tomorrow, would-be leakers couldn’t help but be aware that he’s also waged an unprecedented war on whistleblowers that preceded the Snowden leaks (even though neither the unjustly persecuted Thomas Drake nor any of the others has done any real harm to U.S. national security). 

“The case for forgiving Snowden is strong,” Friedersdorf concludes. “And the costs of doing so are wildly exaggerated. For apparently altruistic reasons, Snowden revealed scandalous instances of illegal behavior, and the scandal that mass surveillance on innocents is considered moral and legal by the national-security state, though it knew enough to keep that a secret. It is difficult to imagine another leak exposing policies so dangerous to a free society or state secrets so antithetical to representative government. The danger of a Snowden pardon creating a norm is virtually nonexistent.”

— Posted by Alexander Reed Kelly.

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