Obama Just Opened the Door for Snowden's Immunity

Obama's overhaul of the NSA spying rules proves it

Today, Charlie Savage at The New York Times reports that the Obama administration will propose the end of the NSA's bulk data collection program, replacing it with a more targeted, more thoroughly court supervised alternative. It is an imperfect solution for those who suspect that the FISA court is too eager to grant such requests but Marc Rotenberg, executive director of the Electronic Privacy Information Center, told the paper that this was "a sensible outcome."

As we are a good way through Obama's second term as president, I think it's more than fair to say that we would not be here, at the cusp of sensibility, without the actions of Edward J. Snowden, the former NSA contractor who now lives in Russia under the protection of Vladimir Putin. Snowden took and released an uncounted number of sensitive documents from his employers and is responsible for disclosing the breadth and scope of the NSA's global telecommunications surveillance program. Had the details of this program remained rumor and whisper as they were for the bulk of Obama's tenure, it's a fair bet that nothing would be changing now.

This is the very essence of whistleblowing. Snowden brought information to the public so that the public could reasonably demand changes from its leaders. Obama was seemingly happy to ignore the surveillance issue until forced, much as he was seemingly happy to hold an ambiguous view on same sex marriage until public opinion made vagaries impossible.

The knock on Snowden's whistleblowing is that he revealed details of the government's legal activities. The Times makes clear that this is a problematic claim, at best:

"It was part of the secret surveillance program that President George W. Bush unilaterally put in place after the terrorist attacks of Sept. 11, 2001, outside of any legal framework or court oversight.

In 2006, as part of a broader Bush administration effort to put its programs on a firmer legal footing, the Justice Department persuaded the surveillance court to begin authorizing the program."

So far as legality goes you have the Bush administration grabbing power by using the broadest possible interpretation of one part of a massive post-crisis law and then persuading a secret court that acts with little public oversight to bless it. Then Obama just went along with the momentum. The legality here is hardly as thoroughly debated as say, the separation of church and state or Obamacare.

Late last year there was some talk that Snowden could be granted amnesty in exchange for returning whatever other documents were in his possession and cooperating to help the government's security agencies not fall prey to other employees and contractors. This was shot down by the White House. Spokesman Jay Carney insisted: "Mr. Snowden has been accused of leaking classified information and he faces felony charges here in the United States. He should be returned to the United States as soon as possible, where he will be accorded full due process in our system."

But all crimes have a context. It might be convenient for the criminal to claim they were acting in the public's interest and it might be rare but Obama's proposal is clearly an admission that Snowden broke the law to identify government activities that should, at the very least, be radically changed.

Obama has a lot of options here. The smart choice is to offer Snowden immunity in exchange for his future cooperation. If the intelligence services are going to continue to outsource classified functions, then Snowden has a lot to offer in terms of protecting legal and necessary secrets. Another is a blanket pardon. Less good but still acceptable is an agreement to commute whatever sentences Snowden receives, should he agree to stand trial.

When the government operates in secret, there is little hope for change. The public can have no opinion about what it doesn't know. Obama's proposal is an admission that Snowden was right. It doesn't make sense to insist that the citizen who prodded his recalcitrant government into action should be punished.

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