Why President Obama Can't Pardon Edward Snowden

A three-year investigation found that key parts of Edward Snowden's story do not check out. Andrew Kelly/Reuters

On September 14, 2016, days before the premiere of Oliver Stone's hagiographic movie Snowden, Human Rights Watch, the American Civil Liberties Union and Amnesty International launched a well-funded campaign, with full-page ads in The New York Times, imploring President Barack Obama to pardon Edward Snowden, a former contract worker at the National Security Agency, for stealing a vast number of secret documents. "I think Oliver will do more for Snowden in two hours than his lawyers have been able to do in three years," said Snowden's ACLU lawyer, Ben Wizner.

Related: The Snowden report misses its mark

A president can pardon anyone from any crime for any reason, or no reason at all, but, as the hours tick away on his presidency, it is unimaginable that Obama, a former law lecturer, will ignore all he knows about what Snowden did and absolve him of his crimes.

This may surprise many people, in part because most of what they know about this case came from the mouth (and tweets) of a single source, Edward Snowden. Here is the sanitized version of his story: On May 20, 2013, just over month after he began working at the NSA Cryptologic Center in Hawaii, he failed to show up for work. He called in sick—but he wasn't sick, he was running. He had flown to Hong Kong with a massive cache of stolen secrets. While in Hong Kong, he gave a very small portion of these documents to three handpicked journalists: Laura Poitras, a Berlin-based documentary filmmaker, Glenn Greenwald, a Brazil-based blogger, and Barton Gellman, a Pulitzer Prize–winning reporter for The Washington Post. The exposes these journalists produced, based on those documents, dominated the headlines for weeks. As the world reeled, Snowden vanished again, this time for 13 days, from June 11 to June 23, before turning up in Russia, which gave him sanctuary, protection and a global platform for his campaign to expose further NSA secrets, and which offered to protect him from prosecution for his crimes.

From Moscow, he repeatedly claimed he was an idealistic whistleblower who had been deliberately stranded in Russia by the Obama administration, which, he suggested, was hoping to demonize him because he had made the U.S. government look bad. He claimed the State Department had trapped him in Russia by revoking his passport while his plane was airborne on June 23. As for the documents he had taken, he insisted he had given all of them to the three journalists while in Hong Kong. He asserted that he had kept no copies and had no access to any of the purloined materials after he left Hong Kong.

I spent three years investigating Snowden's story for my book, How America Lost Its Secrets: Snowden, the Man and the Theft. I went to the places in Hawaii and Japan where Snowden worked for the NSA, the places he staged his anti-surveillance "crypto-parties" in Honolulu, and to Moscow, where I interviewed former Russian intelligence officers, Kremlin insiders and the lawyer who serves as Snowden's intermediary there. Aside from Oliver Stone—who paid this lawyer $1 million, supposedly for the rights to his novel—I am the only American journalist to interview him face-to-face. What I learned, bit by bit, from my many months of investigation, was that the key parts of Snowden's story, although endlessly repeated in the media as fact, do not check out.

Unpardonable Sins

Snowden speaks via video link during a news conference in New York on September 14. Brendan McDermid/Reuters

Unlike me, President Obama did not have to go to Russia to learn the truth about Snowden's theft. He could just read the damage assessment report done by the NSA in 2013, and the more extensive one done by the Pentagon in 2014. Obama also appointed his own group to look into the Snowden affair, and he received the full classified report of the House Permanent Select Committee on Intelligence, which was signed by Adam Schiff, the ranking Democrat, as well as the eight other Democrats on the committee, and was entirely based on work of the intelligence services. So, unlike those ACLU lawyers who merely echo Snowden's version of events, Obama must know that his story is as fictional as Stone's movie.

For example, Obama knows his administration did not strand Snowden in Russia. (And why trap an American intelligence worker with a headful of secrets in an adversary nation?) On June 14, 2013, the Justice Department filed a criminal complaint against Snowden for theft and violation of the espionage laws; on June 22, the State Department invalidated his passport except for return to the U.S., and its senior watch officer confirmed that the American Consul General in Hong Kong had notified Hong Kong authorities that Snowden's passport was invalid. (Even accounting for a 13-hour time difference, the passport was invalid while Snowden was in Hong Kong.) So, instead of scheming to trap him in Moscow, the U.S. government did all it could to prevent him from boarding a plane to Moscow and defecting to Russia.

But it failed. On June 23, Snowden boarded an Aeroflot jet bound for Moscow, even though he didn't have a valid passport. The fact that an airline basically controlled by the Russian government allowed him to board could only mean someone intervened to get Snowden on that plane and then mounted a "special operation," as the Russian newspaper Izvestia put it, to take him off the plane before the other passengers once it landed.

On September 2, 2013, Russian President Vladimir Putin resolved the mystery regarding who intervened on Snowden's behalf in a televised press conference: He personally authorized Snowden's trip to Russia after the American had met with Russian "diplomats" in Hong Kong.

Putin either made this extraordinary effort on behalf of Snowden out of altruism, or because he expected to get something of value from Snowden's defection.

It also was revealed that WikiLeaks, an organization the Obama administration said was a tool of Russian intelligence after it released emails stolen from Democratic Party leaders, helped in Snowden's escape. Julian Assange, WikiLeaks founder, admitted that he laid down a smokescreen by booking a dozen decoy flights out of Hong Kong for Snowden, and sent his deputy, Sarah Harrison, to Hong Kong to pay Snowden's expenses and escort him to Moscow.

Obama also knows Snowden stole much more than files regarding illegal activities or domestic surveillance by the NSA. The report of the House Permanent Select Committee on Intelligence (partly declassified on December 22, 2016) stated that Snowden had "removed" (not merely touched) 1.5 million documents, and he gave journalists only a tiny fraction of his haul. And even the portion Snowden "handed over" to journalists, the report found, compromised "secrets that protect American troops overseas and secrets that provide vital defenses against terrorists and nation-states."

As Obama's presidency winds down, it is unlikely he will ignore everything he knows about Snowden and absolve him of his crimes. SHAWN THEW/EPA

The president also knows from the NSA's damage assessment that Snowden compromised materials critical in the intelligence war against Russia, including documents NSA Deputy Director Richard Ledgett called the "keys to the kingdom." One such document, which Ledgett described in a Vanity Fair interview, included all requests to the NSA by U.S. intelligence agencies to fill the gaps in their coverage of Russia and other adversary nations, and thus it provided a roadmap to the entire U.S. intelligence system.

Obama and Ledgett know Snowden targeted the NSA's super secrets, the so-called Level 3 documents. To protect itself from penetrations, the NSA stratifies data in tiers, depending on sensitivity. Level 1 is mainly administrative material. Level 2 contains data from which the secret sources and methods have been removed, so that data can be shared and analyzed. Level 3 documents cannot be shared outside a small group of authorized individuals because they disclose the secret sources and methods through which the NSA surreptitiously obtained that information, including lists of sources in China, Russia, Iran and other adversary countries. This information could invalidate America's entire intelligence enterprise if it were placed in the hands of an adversary. That's why most Level 3 data is not handled by independent contractors. One NSA contractor, Booz Allen Hamilton, was the oldest and most trusted of these firms, did have a contract to work on this Level 3 data in Hawaii, and that's why in March 2013, Snowden sought a job there, at a cut in salary. Steven Bay, the manager at Booz Allen who hired and supervised Snowden, said after the theft that Snowden took this job to, "get access to lists of machines all over the world the NSA had hacked." Snowden admitted this in an interview with The South China Morning Post while he was in Hong Kong.

As a result, the keys, sources and methods that, among other things, allowed the U.S. to see and counter aggressive moves, including cyberattacks, by adversaries were compromised. This was a devastating blow to U.S. security.

Obama also knows that NSA documents Snowden copied and removed but did not give to those journalists in Hong Kong were used to embarrass America's allies in NATO well after he arrived in Moscow. For example, the explosive revelation that the NSA targeted the cellphone of German Chancellor Angela Merkel was released in September. In June 2015, NSA documents stolen by Snowden on WikiLeaks caused further trouble by revealing that the phones of three presidents of France—Jacques Chirac, Nicolas Sarkozy and François Hollande—had also been targeted. These embarrassing revelations—made long after Snowden claimed he had no more documents—put Obama in a very bad spot with America's European allies.

On top of all that, Obama could hardly accept Snowden's claim that he was never debriefed by the Russians or had even met with any Russian officials. The House report concludes that while in Moscow, Snowden "had, and continues to have, contact with Russian intelligence services."

No matter how loud the clamor from Snowden supporters, Obama will not grant Snowden a pardon.

A Hacker Without a Country

Governments can reduce our dignity to something like that of tagged animals. — Edward Snowden, Moscow, 2016

A northeast Portland resident displays upside down U.S. flags in protest against the NSA spy programs. Rex/AP

The many and varied consequences of Edward Snowden's theft can be divided into three categories: the good, the bad and the ugly. The good is the vigorous national conversation about surveillance spurred by his disclosures. The relentless growth of data-collection technology is a threat to personal privacy—smartphones in our pockets, GPS recorders in our cars, fitness bands on our wrists, closed-circuit TV cameras in stores, and network-connected devices in our homes leave a digital trail of every move we make. The government can subpoena, as part of an investigation, our personal data, including our internet searches, social media postings, electronic communications and credit card records. (One prosecutor just tried to extract data from a suspect's Amazon Echo.) Snowden did us all a huge favor by disclosing that the government was vacuuming in phone billing records and internet activities.

There is, however, an important distinction to be made. In popular culture, surveillance is often associated with the sinister measures taken by a totalitarian government to suppress dissidence. But what Snowden exposed was not a rogue operation; it was programs authorized by the president and Congress, and approved by 15 federal judges. If one accepts that the nation's security remains a legitimate function of government, the issue is not if there should be surveillance; it must rather be what the proper use of surveillance is.

The NSA surveillance of telephone records exposed by Snowden was different from surveillance done, for example, during the Cold War. The recent targets came from a list of 300 to 400 foreign jihadists living abroad. Many of these individuals were identified by the FBI and the CIA as active bomb makers, assassins and weapons specialists in Syria, Iraq and Pakistan. This was not domestic surveillance, per se, but when any of these suspects dialed a phone number in the United States, the NSA checked the billing records of the domestic phone number called to determine all the calls that had emanated from it. While this surveillance targeted foreign terrorists, not domestic dissenters, the bulk collection of phone records had the potential for more nefarious use, a danger Snowden brought to the public's attention. As a result, Congress modified the Patriot Act so that the NSA could still search the billing records (after obtaining an order from the Foreign Intelligence Surveillance Act court), but it could not archive the data. That means there is little risk to individual privacy. Snowden deserves credit for this.

A 'no trespassing' sign marks the boundary of an NSA eavesdropping facility in the Appalachian mountains, which Snowden outed as a major data collection site. JIM LO SCALZO/EPA

The bad part of this tally of consequences is that Snowden profoundly damaged an intelligence system American presidents have relied upon for over six decades. The heart of that system was the sources and methods used to intercept the communications of other nations. For example, the NSA had developed the remarkable ability to tap into an adversary nation's computers, even though they had been isolated from any network. However, Snowden deliberately exposed this technology (published in The New York Times and other newspapers in 2013) for reasons we do not know.

The full extent of the damage he did to U.S. security may never be known, even though the Department of Defense spent the better part of a year—and tens of thousands of investigative man-hours—trying to sort out all the sources and methods pertaining to military and cyberdefense operations he compromised. Michael McConnell, the then–vice chairman of Booz Allen Hamilton, stated publicly, "Snowden has compromised more capability than any spy in U.S. history." McConnell had no obvious reason to exaggerate the loss because his company was partly responsible for the devastation wrought by Snowden. It hired him, even after its vetters flagged an untruthful statement about his expecting to receive a graduate degree in his application. McConnell said, "This will have impact on our ability to do our mission for the next 20 to 30 years."

The practical value of peacetime intelligence about the activities of adversary states is not always evident. What is far clearer to the public is the value of intelligence that can thwart terrorist attacks against subways, nightclubs and other civilian targets. Snowden deprived the NSA of much of the effectiveness of its PRISM program by revealing it, through the articles published at his specific behest in The Guardian and The Washington Post that explained how it worked. This single revelation compromised a system, duly authorized by Congress and the president, that had been the government's single most effective tool for learning in advance about attacks in America and Europe by jihadist terrorists.

An attendee holds a "Pardon Snowden" sign as U.S. President-elect Donald Trump speaks during an event in West Allis, Wisconsin, on December 13, 2016. Daniel Acker/Bloomberg/Getty

The ugly part of the Snowden equation is the rampant growth of public disdain for politicians, government agencies and even politics—according to recent polls, four out of five Americans distrust their government. In this culture of cynical suspicion, any claim that the secrets Snowden disclosed caused needless harm is dismissed as government propaganda. Snowden's word is taken over that of government officials because, as The Nation declared, Snowden speaks "truth to power." Such is his aura of self-abnegating glory that even when his revelations exposed U.S. government actions in foreign lands, including the alleged tapping of friendly government officials' conversations, they were conflated with the purported sins of the NSA's domestic surveillance program. In this culture of distrust, any fact that contradicts the one-source narrative of the innocent whistleblower can be pre-emptively dismissed because Snowden, ensconced in Moscow at an unknown location, remains the ultimate truth-teller. After three years of investigating this case, I must refute this depiction of Snowden, and any version of these events that paints him the hero.

Smashing opening a Pandora's box of government secrets was a perilous undertaking. Whether Snowden's theft was an idealistic attempt to right a wrong, a narcissistic drive to obtain personal recognition, an attempt to weaken the foundations of the surveillance infrastructure in which he worked, or all of the above, by the time he stepped off that Aeroflot jet in Moscow, it had evolved, intentionally or not, into something much simpler and far less admirable. He was disclosing vital national secrets to a foreign power. Conjectures about Snowden's motives matter less than the undeniable fact that he was greatly assisted in his endeavors by powerful enemies of the United States.

That is why he can never be pardoned.

Edward Jay Epstein's book, How America Lost Its Secrets: Snowden, the Man and the Theft, will be published January 17 by Knopf.