Spy or Whistleblower? Should Obama Settle With Snowden?

Edward Snowden speaks via video link from Moscow to attendees at a discussion about establishing a treaty to protect privacy, against improper surveillance and whistleblowers, in New York September 24, 2015. Ronald Goldfarb argues that there is no good reason why the Obama administration should not negotiate a balanced settlement with Snowden that recognizes his achievements for good and ill. Andrew Kelly/reuters

Edward Snowden has been living in asylum in Russia for three years. As our country prepares to elect its next president, none of the candidates are likely to have a merciful attitude toward the controversial whistleblower, nor want to begin their administration with a political act on a provocative subject that passionately divides the country.

But President Obama has an opportunity in his final months in office, when presidents traditionally exercise their pardon and clemency powers, to direct his Attorney General to offer a reasonable settlement to Snowden through his attorneys.

He is unlikely to pardon Snowden, as Snowden's ACLU attorney Ben Wizner asks, but there is no good reason why his Attorney General should not negotiate a balanced settlement that recognizes Snowden's and the government's unique position in this historic face-off.

Central points should be considered in negotiating such a settlement:

  1. Snowden misappropriated government property but he never provided any information to the public. Unlike Julian Assange and Chelsea Manning, Snowden gave his documents to three veteran journalists who curated what would be made public (a small fraction of the records Snowden misappropriated), and they won Pulitzer Prizes and an Academy Award for doing so.
  2. Snowden never intended to remain in Russia. He was stuck there en route to another country when his right to travel was revoked (no doubt to embarrass the US, Russia ironically gave him asylum.) His later attempts to move to other countries that offered him protection were foiled by the US. Snowden has been honored by other countries, allies to the U.S., who credit him for prompting reforms of worldwide policies concerning privacy.
  3. After Snowden's disclosures were made public by his three chosen journalists, the White House ordered a high level investigation which concluded that 46 changes should be made in our surveillance practices; Congress modified its law on the subject; a federal court ruled that the practices Snowden criticized were unconstitutional; and the United Nations concluded that the practices Snowden criticized violated international treaties. Corporate cultures have changed, particularly Silicon Valley businesses whose international commerce suffered after Snowden's disclosures.
  4. Snowden has conceded that he broke laws about misuse of government property for which he expects to be punished. He only asks for a fair and public trial for that offense with an opportunity to present his mitigating claims to the court that adjudges his sentence. The government has settled recent cases of high security officials who misappropriated government property for personal reasons, not high minded ones that motivated Snowden. They received non-punitive sanctions commensurate with the circumstances of their situations.
  5. Just as the president has made amends about our draconian drug laws through exercise of his discretionary executive powers, so could he use Snowden's high profile case to modify his government's excessive application of espionage laws in whistleblower cases by concluding a balanced plea bargain. Even Eric Holder, Obama's Attorney General when Snowden was indicted, recently stated that he now believes Snowden "actually performed a public service," and said of the broad public conversation resulting from Snowden's disclosures, "I think a judge could take into account the usefulness of having had that national debate."
  6. Snowden's video conferences worldwide, in the U.S. particularly, with reputable academic, business and human rights organizations has only enhanced his popularity, prove the value of his public presence and gives credence to claims of his supporters that his treatment has been excessive. He has millions of followers on Twitter and has become a larger than life figure in worldwide internet discussions of the role of whistleblowers, the use of encryption and the proper balance between security and privacy.

Recently he has attended virtual meetings worldwide via Beam Pro, a robotic monitor called Snowbot, so no one is keeping him from having a public and sympathetic presence. Before long he will appear by video in a play in New York, and is the subject of a forthcoming Oliver Stone movie.

In After Snowden, a book I recently edited, I recommended that Snowden be tried by a federal court in Hawaii where his crime was committed; that he plead guilty of misappropriating government property which he admits he did; that the government in a public sentencing procedure present its claims of all the damages resulting from Snowden's misconduct (in camera if there is good cause); and that Snowden be allowed to present his claims for justification for his conduct, if not condonation of it.

The U.S. allows no public interest defense to criminal charges, as many countries do, but it should be considered as a possible future reform, along with more protective whistleblower laws.

The federal judge should then sentence Snowden according to prevailing standards for relevant criminal sanctions. It would be a public service for educational purposes if that proceeding were to be televised.

Ronald Goldfarb, formerly a prosecutor in the Justice Department during the John F. Kennedy years, is a Washington DC attorney and an author who edited After Snowden: Privacy, Secrecy and Security in the Information Age.